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INCAPACITY, SUCCESSION AND

PROHIBITIONS
[G.R. No. 163783. June 22, 2004]
PIMENTEL vs. CONGRESS
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUN 22 2004.
G. R. No. 163783 (Aquilino Q. Pimentel, Jr. vs. Joint Committee of Congress to Canvass the Votes Cast for
President and Vice-President in the May 10, 2004 Elections.)
RESOLUTION
By the present Petition for Prohibition, petitioner Senator Aquilino Q. Pimentel, Jr. seeks a judgment
declaring null and void the continued existence of the Joint Committee of Congress (Joint Committee) to
determine the authenticity and due execution of the certificates of canvass and preliminarily canvass the
votes cast for Presidential and Vice-Presidential candidates in the May 10, 2004 elections following the
adjournment of Congress sine die on June 11, 2004. The petition corollarily prays for the issuance of a writ
of prohibition directing the Joint Committee to cease and desist from conducting any further proceedings
pursuant to the Rules of the Joint Public Session of Congress on Canvassing.
Petitioner posits that with "the adjournment sine die on June 11, 2004 by the Twelfth Congress of its last
regular session, [its] term ... terminated and expired on the said day and the said Twelfth Congress serving
the term 2001 to 2004 passed out of legal existence." Henceforth, petitioner goes on, "all pending matters
and proceedings terminate upon the expiration of ... Congress." To advance this view, he relies on
"legislative procedure, precedent or practice [as] borne [out] by the rules of both Houses of Congress."
Given the importance of the constitutional issue raised and to put to rest all questions regarding the
regularity, validity or constitutionality of the canvassing of votes fro President and Vice-President in the
recently concluded national elections, this Court assumes jurisdiction over the instant petition pursuant to its
power and duty "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" under Section 1 of
Article VIII of the Constitution and its original jurisdiction over petitions for prohibition under Section 5 of
the same Article.
After a considered and judicious examination of the arguments raised by petitioner as well as those
presented in the Comments filed by the Solicitor General and respondent Joint Committee, this Court finds
that the petition has absolutely no basis under the Constitution and must, therefore, be dismissed.
Petitioner's claim that his arguments are buttressed by "legislative procedure, precedent or practice [as]
borne [out] by the rules of both Houses of Congress" is directly contradicted by Section 42 of Rule XIV of the
Rules adopted by the Senate, of which he is an incumbent member. This section clearly provides that the
Senate shall convene in joint session during any voluntary orcompulsory recess to canvass the
votes for President and Vice-President not later than thirty days after the day of the elections in
accordance with Section 4, Article VII of the Constitution.

Moreover, as pointed out in the Comment filed by the Senate Panel for respondent Joint Committee and that
of the Office of the Solicitor General, the precedents set by the 1992 and 1998 Presidential Elections do not
support the move to stop the ongoing canvassing by the Joint Committee, they citing the observations of
former Senate President Jovito Salonga.
Thus, during the 1992 Presidential elections, both Houses of Congress adjourned sine die on May 25, 1992.
On June 16, 1992, the Joint Committee finished tallying the votes for President and Vice-President.
[1]
Thereafter, on June 22, 1992, the Eighth Congress convened in joint public session as the National Board
of Canvassers, and on even date proclaimed Fidel V. Ramos and Joseph Ejercito Estrada as President and
Vice-President, respectively.[2]
cralaw

cralaw

Upon the other hand, during the 1998 Presidential elections, both Houses of Congress adjourned sine die on
May 25, 1998. The Joint Committee completed the counting of the votes for President and Vice-President on
May 27, 1998.[3] The Tenth Congress then convened in joint public session on May 29, 1998 as the National
Board of Canvassers and proclaimed Joseph Ejercito Estrada as President and Gloria Macapagal-Arroyo as
President and Vice-President, respectively.[4]
cralaw

cralaw

As for petitioner's argument that "the [e]xistence and [p]roceedings [o]f the Joint Committee of Congress
[a]re [i]nvalid, [i]llegal and [u]nconstitutional [f]ollowing the [a]djournment [s]ine [d]ie [o]f [b]oth Houses
of Congress [o]f [t]heir [r]egular [s]essions on June 11, 2004," he cites in support thereof Section 15,
Article VI of the Constitution which reads:
Sec. 15. The Congress shall convene once every year on the fourth Monday of July for its regular session,
unless a different date is fixed by law, and shall continue to be in session for such number of days as it may
determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays,
and legal holidays. The President may call a special session at any time.
Contrary to petitioner's argument, however, the term of the present Twelfth Congress did not terminate and
expire upon the adjournment sine die of the regular session of both Houses on June 11, 2004.
Section 15, Article VI of the Constitution cited by petitioner does not pertain to the term of Congress, but to
its regular annual legislative sessions and the mandatory 30-day recess before the opening of its next
regular session (subject to the power of the President to call a special session at any time).
Section 4 of Article VIII also of the Constitution clearly provides that "[t]he term of office of the
Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth
day of June next following their election." Similarly, Section 7 of the same Article provides that "[t]he
Members of the House of Representatives shall be elected for a term of three years which shall begin,
unless otherwise provided by law, at noon on the thirtieth day of June next following their election."
Consequently, there being no law to the contrary, until June 30, 2004, the present Twelfth Congress to which
the present legislators belong cannot be said to have "passed out of legal existence."
The legislative functions of the Twelfth Congress may have come to a close upon the final adjournment of
its regular sessions on June 11, 2004, but this does not affect its non-legislativefunctions, such as that of
being the National Board of Canvassers. In fact, the joint public session of both Houses of Congress
convened by express directive of Section 4, Article VII of the Constitution to canvass the votes for and to
proclaim the newly elected President and Vice-President has not, and cannot, adjourn sine die until it has
accomplished its constitutionally mandated tasks. For only when a board of canvassers has completed its
functions is it rendered functus officio. Its membership may change, but it retains its authority as a board
until it has accomplished its purposes. (Pelayo v. Commission on Elections, 23 SCRA 1374, 1385 [1968],
citing Bautista v. Fugoso, 60 Phil. 383, 389 [1934] and Aquino v. Commission on Elections, L-28392,
January 29 1968)
Since the Twelfth Congress has not yet completed its non-legislative duty to canvass the votes and proclaim
the duly elected President and Vice-President, its existence as the National Board of Canvassers, as well as

that of the Joint Committee to which it referred the preliminary tasks of authenticating and canvassing the
certificates of canvass, has not become functus officio.
In sum, despite the adjournment sine die of Congress, there is no legal impediment to the Joint Committee
completing the tasks assigned to it and transmitting its report for the approval of the joint public session of
both Houses of Congress, which may reconvene without need of call by the President to a special session.
WHEREFORE, the instant Petition is hereby DISMISSED.
Vitug, J., on official leave; Ynares-Santiago and Austria-Martinez, JJ., on leave.

EN BANC

[G.R. Nos. 146710-15. April 3, 2001]

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity


as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST
CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES
FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO
CAPULONG
and
ERNESTO
B.
FRANCISCO,
JR., respondents.

[G.R. No. 146738. April 3, 2001]

JOSEPH
E.
ESTRADA, petitioner,
ARROYO, respondent.

vs. GLORIA

MACAPAGAL-

R E S O LUTIO N
PUNO, J.:

For resolution are petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and
Omnibus Motion in G.R. No. 146738 of the Courts Decision of March 2, 2001.
In G.R. Nos. 146710-15, petitioner raises the following grounds:
I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI, SECTION 3
(7) OF THE CONSTITUTION AND THE SETTLED JURISPRUDENCE THEREON.
II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING
WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION,

CONSIDERING THAT PETITIONER WAS ACQUITTED IN THE IMPEACHMENT


PROCEEDINGS.
III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE
IMMUNITY FROM SUIT.
IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL HAVE NOT
BEEN PREJUDICED BY PRE-TRIAL PUBLICITY.
V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE COURT TO
ENJOIN THE PRELIMINARY INVESTIGATION OF THE INCUMBENT
OMBUDSMAN, PETITIONER HAVING FAILED TO PROVE THE IMPAIRED
CAPACITY OF THE OMBUDSMAN TO RENDER A BIASED FREE DECISION.

In G.R. No. 146738, petitioner raises and argues the following issues:
1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED RESIGNED AS
OF JANUARY 20, 2001;
2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF
THE FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE,
AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA;
3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF THE
HEARSAY RULE;
4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS INABILITY TO
GOVERN CONSIDERING SECTION 11, ARTICLE VII OF THE CONSTITUTION; and
5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS RIGHT TO
FAIR TRIAL.

We find the contentions of petitioner bereft of merit.


I

Prejudicial Publicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the
Decision for adverting to newspaper accounts of the events and occurrences to reach the
conclusion that he has resigned. In our Decision, we used the totality test to arrive at the
conclusion that petitioner has resigned. We referred to and analyzed events that were prior,
contemporaneous and posterior to the oath-taking of respondent Arroyo as president. All these
events are facts which are well-established and cannot be refuted. Thus, we adverted to prior
events that built up the irresistible pressure for the petitioner to resign. These are: (1) the expose
of Governor Luis Chavit Singson on October 4, 2000; (2) the I accuse speech of then Senator
Teofisto Guingona in the Senate; (3) the joint investigation of the speech of Senator Guingona by
the Blue Ribbon Committee and the Committee on Justice; (4) the investigation of the Singson
expose by the House Committee on Public Order and Security; (5) the move to impeach the
petitioner in the House of Representatives; (6) the Pastoral Letter of Archbishop Jaime Cardinal
Sin demanding petitioners resignation; (7) a similar demand by the Catholic Bishops conference;
(8) the similar demands for petitioners resignation by former Presidents Corazon C. Aquino and

Fidel V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD and her call
for petitioner to resign; (10) the resignation of the members of petitioners Council of Senior
Economic Advisers and of Secretary Mar Roxas III from the Department of Trade and Industry;
(11) the defection of then Senate President Franklin Drilon and then Speaker of the House of
Representatives Manuel Villar and forty seven (47) representatives from petitioners Lapiang
Masang Pilipino; (12) the transmission of the Articles of Impeachment by Speaker Villar to the
Senate; (13) the unseating of Senator Drilon as Senate President and of Representative Villar as
Speaker of the House; (14) the impeachment trial of the petitioner; (15) the testimonies of
Clarissa Ocampo and former Finance Secretary Edgardo Espiritu in the impeachment trial; (16)
the 11-10 vote of the senator-judges denying the prosecutors motion to open the 2nd envelope
which allegedly contained evidence showing that petitioner held a P3.3 billion deposit in a secret
bank account under the name of Jose Velarde; (17) the prosecutors walkout and resignation; (18)
the indefinite postponement of the impeachment proceedings to give a chance to the House of
Representatives to resolve the issue of resignation of their prosecutors; (19) the rally in the
EDSA Shrine and its intensification in various parts of the country; (20) the withdrawal of
support of then Secretary of National Defense Orlando Mercado and the then Chief of Staff,
General Angelo Reyes, together with the chiefs of all the armed services; (21) the same
withdrawal of support made by the then Director General of the PNP, General Panfilo Lacson,
and the major service commanders; (22) the stream of resignations by Cabinet secretaries,
undersecretaries, assistant secretaries and bureau chiefs; (23) petitioners agreement to hold a
snap election and opening of the controversial second envelope.All these prior events are facts
which are within judicial notice by this Court. There was no need to cite their news
accounts. The reference by the Court to certain newspapers reporting them as they
happened does not make them inadmissible evidence for being hearsay. The news account
only buttressed these facts as facts. For all his loud protestations, petitioner has not singled
out any of these facts as false.
We now come to some events of January 20, 2001 contemporaneous to the oath taking of
respondent Arroyo. We used the Angara Diary to decipher the intent to resign on the part of the
petitioner. Let it be emphasized that it is not unusual for courts to distill a persons subjective
intent from the evidence before them. Everyday, courts ascertain intent in criminal cases, in civil
law cases involving last wills and testaments, in commercial cases involving contracts and in
other similar cases. As will be discussed below, the use of the Angara Diary is not prohibited by
the hearsay rule. Petitioner may disagree with some of the inferences arrived at by the Court
from the facts narrated in the Diary but that does not make the Diary inadmissible as evidence.
We did not stop with the contemporaneous events but proceeded to examine some events
posterior to the oath-taking of respondent Arroyo. Specifically, we analyzed the all important
press release of the petitioner containing his final statement which was issued after the oathtaking of respondent Arroyo as president. After analyzing its content, we ruled that petitioners
issuance of the press release and his abandonemnt of Malacaang Palace confirmed his
resignation.[1] These are overt acts which leave no doubt to the Court that the petitioner has
resigned.
In light of this finding that petitioner has resigned before 12 oclock noon of Janaury 20,
2001, the claim that the office of the President was not vacant when respondent Arroyo
took her oath of office at half past noon of the same day has no leg to stand on.

We also reject the contention that petitioners resignation was due to duress and
an involuntary resignation is no resignation at all.

x x x [I]t has been said that, in determining whether a given resignation is voluntarily
tendered, the element of voluntariness is vitiated only when the resignation is
submitted under duress brought on by government action. The three-part test for
such duress has been stated as involving the following elements: (1) whether one side
involuntarily accepted the others terms; (2) whether circumstances permitted no other
alternative; and (3) whether such circumstances were the result of coercive acts of the
opposite side. The view has also been expressed that a resignation may be found
involuntary if on the totality of the circumstances it appears that the employers
conduct in requesting resignation effectively deprived the employer of free choice in
the matter. Factors to be considered, under this test, are: (1) 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 employewe 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 objective
standard rather than by the employees purely subjective evaluation; that the
employee may perceive his or her only option to be resignation for example,
because of concerns about his or her reputation is irrelevant. Similarly, the mere
fact that the choice is between comparably unpleasant alternatives for example,
resignation or facing disciplinary charges does not of itself establish that a
resignation was induced by duress or coercion, and was therefore
involuntary. 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 termination existed. In this regard it has also been said that a
resignation resulting from a choice between resigning or facing proceedings for
dismissal is not tantamount to discharge by coercion without procedural view if the
employee is given sufficient time and opportunity for deliberation of the choice
posed. Futhermore, a resignation by an officer charged with misconduct is not given
under duress, though the appropriate authority has already determined that the officers
alternative is termination, where such authority has the legal authority to terminate the
officers 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. [2]
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 because
immediately before he left Malacaang, he asked Secretary Angara: Ed, aalis na ba ako? which
implies that he still had 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 petitioners resignation. The
Malacaang 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 Malacaang to assure that no harm would befall the petitioner as he left the
Palace. Indeed, no harm, not even a scratch, was suffered by the petitioner, the members of his
family and his Cabinet who stuck it out with him in his last hours. Petitioners 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 residence in Polk Street, Greenhills. The only incident before the
petitioner left the Palace was the stone throwing between a small group of pro and anti Erap
rallyists which resulted in minor injuries to a few of them. Certainly, there were no tanks that
rumbled through the Palace, no attack planes that flew over the presidential residence, no
shooting, no large scale violence, except verbal violence, to justify the conclusion that petitioner
was coerced to resign.
II

Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper use by this Court of
the Angara Diary. It is urged that the use of the Angara Diary to determine the state of mind of
the petitioner on the issue of his resignation violates the rule against the admission of hearsay
evidence.
We are unpersuaded. To begin with, the Angara diary is not an out of court
statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot
complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its
use. To be sure, the said Diary was frequently referred to by the parties in their pleadings. [3] The
three parts of the Diary published in the PDI from February 4-6, 2001 were attached as Annexes
A-C, respectively, of the Memorandum of private respondents Romeo T. Capulong, et al., dated
February 20, 2001. The second and third parts of the Diary were earlier also attached as Annexes
12 and 13 of the Comment of private respondents Capulong, et al., dated February 12, 2001. In
fact, petitioner even cited in his Second Supplemental Reply Memorandum both the second part
of the diary, published on February 5, 2001, [4] and the third part, published on February 6, 2001.
[5]
It was also extensively used by Secretary of Justice Hernando Perez in his oral
arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but
unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of court statement, still its use is
not covered bythe hearsay rule.[6] Evidence is called hearsay when its probative force depends, in
whole or in part, on the competency and credibility of some persons other than the witness by
whom it is sought to produce it.[7] There are three reasons for excluding hearsay evidence: (1)
absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath.
[8]
Not at all hearsay evidence, however, is inadmissible as evidence. Over the years, a huge body
of hearsay evidence has been admitted by courts due to their relevance, trustworthiness and

necessity.[9] The emergence of these exceptions and their wide spread acceptance is wellexplained by Weinstein, Mansfield, Abrams and Berger as follows:

xxx
On the other hand, we all make decisions in our everyday lives on the basis of other
persons accounts of what happened, and verdicts are usually sustained and affirmed
even if they are based on hearsay erroneously admitted, or admitted because no
objection was made. See Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985)
(hearsay evidence alone can support a verdict).Although volumes have been written
suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all
hearsay evidence. Indeed, the decided historical trend has been to exclude
categories of highly probative statements from the definition of hearsay (sections
2 and 3, infra), and to develop more class exceptions to the hearsay rule (sections
4-11, infra).Furthermore, many states have added to their rules the residual, or
catch-all, exceptions first pioneered by the Federal Rules which authorize the
admission of hearsay that does not satisfy a class exception, provided it is
adequately trustworthy and probative (section 12, infra).
Moreover, some commentators believe that the hearsay rule should be abolished
altogether instead of being loosened. See, e.g., Note, The Theoretical Foundation of
the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted):
The Federal Rules of Evidence provide that [a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Under this structure, exclusion is justified by fears of how the jury will be
influenced by the evidence. However, it is not traditional to think of hearsay as merely
a subdivision of this structure, and the Federal Rules do not conceive of hearsay in
that manner. Prejudice refers to the jurys use of evidence for inferences other than
those for which the evidence is legally relevant; by contrast, the rule against hearsay
questions the jurys ability to evaluate the strength of a legitimate inference to be
drawn from the evidence. For example, were a judge to exclude testimony because a
witness was particularly smooth or convincing, there would be no doubt as to the
usurpation of the jurys function. Thus, unlike prejudices recognized by the evidence
rules, such as those stemming from racial or religious biases or from the introduction
of photographs of a victims final state, the exclusion of hearsay on the basis of
misperception strikes at the root of the jurys function by usurping its power to process
quite ordinary evidence, the type of information routinely encountered by jurors in
their everyday lives.
Since virtually all criteria seeking to distinguish between good and bad hearsay are
either incoherent, inconsistent, or indeterminate, the only altenative to a general rule

of admission would be an absolute rule of exclusion, which is surely inferior. More


important, the assumptions necessary to justify a rule against hearsay seem
insupportable and, in any event, are inconsistent with accepted notions of the function
of the jury. Therefore, the hearsay rules should be abolished.
Some support for this view can be found in the limited empirical research now
available which is, however, derived from simulations that suggests that admitting
hearsay has little effect on trial outcomes because jurors discount the value of
hearsay evidence. See Rakos & Landsman, Researching the Hearsay Rule: Emerging
Findings, General Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992); Miene,
Park, & Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76
Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors Perceptions of Eyewitness
and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research
Essay: A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay
Evidence in American Courts, 15 Law & Psychol. Rev. 65 (1991).
Others, even if they concede that restrictions on hearsay have some utility, question
whether the benefits outweigh the cost:

The cost of maintaining the rule is not just a function of its contribution to justice. It
also includes the time spent on litigating the rule. And of course this is not just a cost
voluntarily borne by the parties, for in our system virtually all the cost of the court
salaries, administrative costs, and capital costs are borne by the public. As expensive
as litigation is for the parties, it is supported by an enormous public subsidy. Each
time a hearsay question is litigated, the public pays. The rule imposes other costs
as well. Enormous time is spent teaching and writing about the hearsay rule, which are
both costly enterprises. In some law schools, students spend over half their time in
evidence classes learning the intricacies of the hearsay rule, and enormous academic
resources are expended on the rule.
Allen, Commentary on Professor Friendmans Article: The Evolution of the Hearsay
Rule to a Rule of Admission, 76 Minn.L.Rev. 797, 800 [1992] (but would abolish rule
only in civil cases).See also Friedman, Toward a Partial Economic, Game-Theoretic
Analysis of Hearsay, 76 Minn. L. Rev. 723 (1992).[10]
A complete analysis of any hearsay problem requires that we further determine whether
the hearsay evidence is one exempted from the rules of exclusion. A more circumspect
examination of our rules of exclusion will show that they do not cover admissions of a party
and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that the act,
declaration or omission of a party as to a relevant fact may be given in evidence against him. [11] It
has long been settled that these admissions are admissible even if they are hearsay. Retired Justice Oscar
Herrera of the Court of Appeals cites the various authorities who explain why admissions are not
covered by the hearsay rule:[12]

Wigmore, after pointing out that the partys declaration has generally the probative
value of any other persons asssertion, argued that it had a special value when offered
against the party. In that circumstance, the admission discredits the partys statement
with the present claim asserted in pleadings and testimony, much like a witness
impeached by contradictory statements.Moreover, he continued, admissions pass the
gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded
if there was no opportunity for the opponent to cross-examine because it is the
opponents own declaration, and he does not need to cross examine
himself. Wigmore then added that the Hearsay Rule is satisfied since the party now as
opponent has the full opportunity to put himself on the stand and explain his former
assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec.
154, McCormick)
According to Morgan: The admissibility of an admission made by the party himself
rests not upon any notion that the circumstances in which it was made furnish the trier
means of evaluating it fairly, but upon the adversary theory of litigation. A party can
hardly object that he had no opportunity to cross-examine himself or that he is
unworthy of credence save when speaking under sanction of an oath.
A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible
against him, for the reason that it is fair to presume that they correspond with the
truth, and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583).
The Angara Diary contains direct statements of petitioner which can be categorized
as admissions of a party: his proposal for a snap presidential election where he would not be a
candidate; his statement that he only wanted the five-day period promised by Chief of Staff
Angelo Reyes; his statements that he would leave by Monday if the second envelope would be
opened by Monday and Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako
sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this its too painful. Im
tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will
go. We noted that days before, petitioner had repeatedly declared that he would not resign despite
the growing clamor for his resignation. The reason for the meltdown is obvious - - - his will not
to resign has wilted.
It is, however, argued that the Angara Diary is not the diary of the petitioner, hence,
non-binding on him. The argument overlooks the doctrine of adoptive admission. An adoptive
admission is a partys reaction to a statement or action by another person when it is reasonable to
treat the partys reaction as an admission of something stated or implied by the other person.
[13]
Jones explains that the basis for admissibility of admissions made vicariously is that arising from
the ratification or adoption by the party of the statements which the other person had made. [14] To
use the blunt language of Mueller and Kirkpatrick, this process of attribution is not mumbo jumbo but
common sense.[15] In the Angara Diary, the options of the petitioner started to dwindle when the
armed forces withdrew its support from him as President and commander-in-chief. Thus,
Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider

the option of dignified exit or resignation. Petitioner did not object to the suggested option but
simply said he could never leave the country. Petitioners silence on this and other related
suggestions can be taken as an admission by him.[16]
Petitioner further contends that the use of the Angara diary against him violated the rule
on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court,
viz:The rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
Again, petitioner errs in his contention. The res inter alios acta rule has several
exceptions. One of them is provided in section 29 of Rule 130 with respect to admissions by a
co-partner or agent.
Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little
President. Indeed, he was authorized by the petitioner to act for him in the critical hours and
days before he abandoned Malacaang Palace. Thus, according to the Angara Diary, the
petitioner told Secretary Angara: Mula umpisa pa lang ng kampanya, Ed, ikaw na lang
pinakikinggan ko. At hanggang sa huli, ikaw pa rin. (Since the start of the campaign, Ed, you
have been the only one Ive listened to. And now at the end, you still are.) [17] This statement of full
trust was made by the petitioner after Secretary Angara briefed him about the progress of the first
negotiation. True to this trust, the petitioner had to ask Secretary Angara if he would already leave
Malacaang after taking their final lunch on January 20, 2001 at about 1:00 p.m. The Angara
Diary quotes the petitioner as saying to Secretary Angara: ed, kailangan ko na bang umalis? (Do I

have to leave now?)[18] Secretary Angara told him to go and he did. Petitioner cannot deny that
Secretary Angara headed his team of negotiators that met with the team of the respondent Arroyo
to discuss the peaceful and orderly transfer of power after his relinquishment of the powers of the
presidency. The Diary shows that petitioner was always briefed by Secretary Angara on the
progress of their negotiations.Secretary Angara acted for and in behalf of the petitioner in the
crucial days before respondent Arroyo took her oath as President. Consequently, petitioner is
bound by the acts and declarations of Secretary Angara.
Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on
the principal (petitioner).[19] Jones very well explains the reasons for the rule, viz: What is done,
by agent, is done by the principal through him, as through a mere instrument. So, whatever is
said by an agent, either in making a contract for his principal, or at the time and accompanying
the performance of any act within the scope of his authority, having relation to, and connected
with, and in the course of the particular contract or transaction in which he is then engaged, or in
the language of the old writers, dum fervet opus is, in legal effect, said by his principal and
admissible in evidence against such principal.[20]
Moreover, the ban on hearsay evidence does not cover independently relevant
statements. These are statements which are relevant independently of whether they are true
or not.They belong to two (2) classes: (1) those statements which are the very facts in issue, and
(2) those statements which are circumstantial evidence of the facts in issue. The second class
includes the following:[21]
a. Statement of a person showing his state of mind, that is, his mental condition, knowledge,
belief, intention, ill will and other emotions;
b. Statements of a person which show his physical condition, as illness and the like;

c. Statements of a person from which an inference may be made as to the state of mind of
another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter;
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness.

Again, Jones tells us why these independently relevant statements are not covered by
the prohibition against hearsay evidence:[22]

1088. Mental State or Condition Proof of Knowledge.- There are a number of comon
issues, forming a general class, in proof of which hearsay is so obviously necessary
that it is not customary to refer to its admissibility as by virtue of any exception to the
general exclusionary rule. Admissibility, in such cases, is as of course. For
example, where any mental state or condition is in issue, such as motive, malice,
knowledge, intent, assent or dissent, unless direct testimony of the particular person is
to be taken as conclusive of his state of mind, the only method of proof available is
testimony of others to the acts or statements of such person. Where his acts or
statements are against his interest, they are plainly admissible within the rules
hereinabove announced as to admissions against interest. And even where not against
interest, if they are so closely connected with the event or transaction in issue as to
constitute one of the very facts in controversy, they become admissible of necessity.
As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his
state of mind and are circumstantial evidence of his intent to resign. It also contains statements of
Secretary Angara from which we can reasonably deduce petitioners intent to resign. They are
admissible and they are not covered by the rule on hearsay. This has long been a quiet area of our
law on evidence and petitioners attempt to foment a belated tempest cannot receive our
imprimatur.
Petitioner also contends that the rules on authentication of private writings and best
evidence were violated in our Decision, viz:

The use of the Angara diary palpably breached several hornbook rules of evidence,
such as the rule on authentication of private writings
xxx

A. Rule on Proof of Private Writings Violated


The rule governing private documents as evidence was violated. The law provides that
before any private writing offered as authentic is received in evidence, its due
execution and authenticity must be proved either: a) by anyone who saw the document
executed or written, or b) by evidence of the genuineness of the signature or
handwriting of the maker.

xxx

B. Best Evidence Rule Infringed


Clearly, the newspaper reproduction is not the best evidence of the Angara diary. It is
secondary evidence, of dubious authenticity. It was however used by this Honorable
Court without proof of the unavailability of the original or duplicate original of the
diary. The Best Evidence Rule should have been applied since the contents of the
diary are the subject of inquiry.
The rule is that, except in four (4) specific instances, [w]hen the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original
document itself.[23]
Petitioners contention is without merit. In regard to the Best Evidence rule, the Rules of
Court provides in sections 2 to 4 of Rule 130, as follows:

Sec. 2. Documentary evidence. Documents as evidence consist of writings or any


material containing letters, words, numbers, figures or other modes of written
expressions offered as proof of their contents.
Sec. 3. Original document must be produced; exceptions. When the subject of inquiry
is the contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom
the evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.
Sec. 4. Original of document. (a) The original of a document is one the contents of
which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time,
with identical contents, all such copies are equally regarded as originals.

(c) When an entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise equally
regarded as originals.
It is true that the Court relied not upon the original but only copy of the Angara Diary as
published in the Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did
not, however, violate the best evidence rule. Wigmore, in his book on evidence, states that:

Production of the original may be dispensed with, in the trial courts discretion,
whenever in the case in hand the opponent does not bona fide dispute the contents
of the document and no other useful purpose will be served by requiring production.
[24]

xxx

In several Canadian provinces, the principle of unavailability has been abandoned, for
certain documents in which ordinarily no real dispute arised. This measure is a
sensible and progressive one and deserves universal adoption (post, sec. 1233). Its
essential feature is that a copy may be used unconditionally, if the opponent has been
given an opportunity to inspect it. (empahsis supplied)
Franciscos opinion is of the same tenor, viz:

Generally speaking, an objection by the party against whom secondary evidence is


sought to be introduced is essential to bring the best evidence rule into application;
and frequently, where secondary evidence has been admitted, the rule of exclusion
might have successfully been invoked if proper and timely objection had been
taken. No general rule as to the form or mode of objecting to the admission of
secondary evidence is set forth. Suffice it to say here that the objection should be
made in proper season that is, whenever it appears that there is better evidence
than that which is offered and before the secondary evidence has been
admitted. The objection itself should be sufficiently definite to present a tangible
question for the courts consideration.[25]
He adds:

Secondary evidence of the content of the writing will be received in evidence if no


objection is made to its reception.[26]
In regard to the authentication of private writings, the Rules of Court provides in section 20 of
Rule 132, viz:

Sec. 20. Proof of private document. Before any private document offered as authentic
is received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.
On the rule of authentication of private writings, Francisco states that:

A proper foundation must be laid for the admission of documentary evidence; that is,
the identity and authenticity of the document must be reasonably established as a prerequisite to its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263,
and others) However, a party who does not deny the genuineness of a proffered
instrument may not object that it was not properly identified before it was
admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103
A.L.R. 835).[27]
Petitioner cites the case of State prosecutors v. Muro,[28] which frowned on reliance by
courts on newspaper accounts. In that case, Judge Muro was dismissed from the service for
relying on a newspaper account in dismissing eleven (11) cases against Mrs. Imelda Romualdez
Marcos. There is a significant difference, however, between the Muro case and the cases at bar. In
the Murocase, Judge Muro dismissed the cases against Mrs. Marcos on the basis of a newspaper
account without affording the prosecution the basic opportunity to be heard on the matter by way of
a written comment or on oral argument. . .(this is) not only a blatant denial of elementary due
process to the Government but is palpably indicative of bad faith and partiality. In the instant
cases, however, the petitioner had an opportunity to object to the admissibility of the Angara
Diary when he filed his Memorandum dated February 20, 2001, Reply Memorandum dated
February 22, 2001, Supplemental Memorandum dated February 23, 2001, and Second
Supplemental memorandum dated February 24, 2001. He was therefore not denied due
process. In the words of Wigmore,supra, petitioner had been given an opportunity to inspect
the Angara Diary but did not object to its admissibility. It is already too late in the day to raise his
objections in an Omnibus Motion, after theAngara Diary has been used as evidence and a decision rendered partly
on the basis thereof.
III

Temporary Inability

Petitioner argues that the Court misinterpreted the meaning of section 11, Article VII, of the
Constitution in that congress can only decide the issue of inability when there is a variance of
opinion between a majority of the Cabinet and the President. The situation presents itself when
majority of the Cabinet determines that the President is unable to govern; later, the President

informs Congress that his inability has ceased but is contradicted by a majority of the members
of the Cabinet. It is also urged that the presidents judgment that he is unable to govern
temporarily which is thereafter communicated to the Speaker of the House and the President of
the Senate is the political question which this Court cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he himself made the
submission in G.R. No. 146738 that Congress has the ultimate authority under the
Constitution to determine whether the President is incapable of performing his functions in
the manner provided for in section 11 of Article VII.[29] We sustained this submission and
held that by its many acts, Congress has already determined and dismissed the claim of alleged
temporary inability to govern proffered by petitioner. If petitioner now feels aggrieved by
the manner Congress exercised its power, it is incumbent upon him to seek redress from
Congress itself. The power is conceded by the petitioner to be with Congress and its alleged
erroneous exercise cannot be corrected by this Court. The recognition of respondent Arroyo
as our de jure president made by Congress is unquestionably a political judgment. It is
significant that House Resolution No. 176 cited as the bases of its judgment such factors as
the peoples loss of confidence on the ability of former President Joseph Ejercito Estrada to
effectively govern and the members of theinternational community had extended their
recognition of Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines and it has a constitutional duty of fealty to the supreme will of the people x x
x. This political judgment may be right or wrong but Congress is answerable only to the
people for its judgment. Its wisdom is fit to be debated before the tribunal of the people and not
before a court of justice. Needles to state, the doctrine of separation of power constitutes
an inseparable bar against this courts interposition of its power of judicial review to review the
judgment of Congress rejecting petitioners claim that he is still the President, albeit on leave and
that respondent Arroyo is merely an acting President.
Petitioner attempts to extricate himself from his submission that Congress has the ultimate
authority to determine his inability to govern, and whose determination is a political question by
now arguing that whether one is a de jure or de facto President is a judicial
question. Petitioners change of theory, ill disguised as it is, does not at all impress. The cases at
bar do not present the general issue of whether the respondent Arroyo is the de jure or a de
facto President. Specific issues were raised to the Court for resolution and we ruled on an issue
by issue basis. On the issue of resignation under section 8, Article VII of the Constitution, we
held that the issue is legal and ruled that petitioner has resigned from office before respondent
Arroyo took her oath as President. On the issue of inability to govern under section 11, Article
VII of the Constitution, we held that the Congress has the ultimate authority to determine the
question as opined by the petitioner himself and that the determination of Congress is a political
judgment which this Court cannot review. Petitioner cannot blur these specific rulings by the
generalization that whether one is a de jure or de facto President is a judicial question.
Petitioner now appears to fault Congress for its various acts expressed thru resolutions
which brushed off his temporary inability to govern and President-on-leave argument. He
asserts that these acts of Congress should not be accorded any legal significance because: (1)
they are post facto and (2) a declaration of presidential incapacity cannot be implied.
We disagree. There is nothing in section 11 of Article VII of the Constitution which states
that the declaration by Congress of the Presidents inability must always be a priori or before the

Vice-President assumes the presidency. In the cases at bar, special consideration should be given
to the fact that the events which led to the resignation of the petitioner happened at express speed
and culminated on a Saturday. Congress was then not in session and had no reasonable
opportunity to act a priori on petitioners letter claiming inability to govern. To be sure,
however, the petitioner cannot strictly maintain that the President of the Senate, the Honorable
Aquilino Pimentel, Jr. and the then Speaker of the House of Representatives, the Honorable
Arnulfo P. Fuentebella, recognized respondent Arroyo as the constitutional successor to the
presidency post facto. Petitioner himself states that his letter alleging his inability to govern was
received by the Office of the Speaker on January 20, 2001 at 8:30 A.M. and the Office of the
Senate at 9 P.M. of the same day.[30] Respondent took her oath of office a few minutes past 12
oclock in the afternoon of January 20. Before the oath-taking, Senate President Pimentel, Jr. and
Speaker Fuentebella had prepared a Joint Statement which states:[31]

Joint Statement of Support


and Recognition from the
Senate President and the Speaker
Of the House of Representatives
We, the elected leaders of the Senate and the House of Representatives, are called
upon to address the constitutional crisis affecting the authority of the President to
effectively govern our distressed nation. We understand that the Supreme Court at that
time is issuing an en banc resolution recognizing this political reality. While we may
differ on the means to effect a change of leadership, we however, cannot be indifferent
and must act resolutely. Thus, in line with our sworn duty to represent our people
and in pursuit of our goals for peace and prosperity to all, we, the Senate
President and the Speaker of the House of Representatives, hereby declare our
support and recognition to the constitutional successor to the Presidency. We
similarly call on all sectors to close ranks despite our political differences. May God
bless our nation in this period of new beginnings.
Mabuhay and Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQUILINO PIMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA
Speaker of the House of Representatives
This a priori recognition by the President of the Senate and the Speaker of the House of
Representatives of respondent Arroyo as the constitutional successor to the presidency was
followed post facto by various resolutions of the Senate and the House, in effect, confirming this
recognition. Thus, Resolution No. 176 expressed x x x the support of the House of
Representatives to the assumption into office by Vice-President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nations goal under the

Constitution.[32] Resolution No. 82 of the Senate and Resolution No. 178 of the House of
Representatives both confirmed the nomination of then Senator Teofisto Guingona, Jr., as VicePresident.[33] It also passed Resolution No. 83 declaring the impeachment court functus officio.
[34]
Both Houses sent bills to respondent Arroyo to be signed by her into law as President of the
Philippines.[35] These acts of Congress, a priori and post facto, cannot be dismissed as merely
implied recognitions of respondent Arroyo, as the President of the Republic. Petitioners
insistence that respondent Arroyo is just a de facto President because said acts of Congress x x x
are mere circumstances of acquiescence calculated to induce people to submit to respondents
exercise of the powers of the presidency[36] is a guesswork far divorced from reality to deserve
further discussion.
Similarly way off the mark is petitioners point that while the Constitution has made
Congress the national board of canvassers for presidential and vice-presidential elections, this
Honorable Court nonetheless remains the sole judge in presidential and vice presidential
contests.[37] He thus postulates that such constitutional provision [38] is indicative of the desire of
the sovereign people to keep out of the hands of Congress questions as to the legality of a
persons claim to the presidential office.[39] Suffice to state that the inference is illogical. Indeed,
there is no room to resort to inference. The Constitution clearly sets out the structure on how
vacancies and election contest in the office of the President shall be decided. Thus, section 7 of
Article VII covers the instance when (a) the President-elect fails to qualify, (b) if a President
shall not have been chosen and (c) if at the beginning of the term of the President, the Presidentelect shall have died or shall have become permanently disabled. Section 8 of Article VII covers
the situation of the death, permanent disability, removal from office or resignation of the
President. Section 11 of Article VII covers the case where the President transmits to the
President of the Senate and the Speaker of the House of Representatives his written declaration
that he is unable to discharge the powers and duties of his office. In each case, the Constitution
specifies the body that will resolve the issues that may arise from the contingency. In case of
election contest, section 4, Article VII provides that the contests shall be resolved by this Court
sitting en banc. In case of resignation of the President, it is not disputed that this Court has
jurisdiction to decide the issue. In case of inability to govern, section 11 of Article VII gives the
Congress the power to adjudge the issue and petitioner himself submitted this thesis which was
shared by this Court. In light of these clear provisions of the Constitution, it is inappropriate, to
say the least, for petitioner to make inferences that simply distort their meanings.
IV

Impeachment and Absolute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article XI of the Constitution
which provides:

(7) Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the Philippines,

but the party convicted should nevertheless be liable and subject to prosecution, trial
and punishment according to law.
Petitioner reiterates the argument that he must be first convicted in the impeachment
proceedings before he could be criminally prosecuted. A plain reading of the provision will not
yield this conclusion. The provision conveys two uncomplicated ideas: first, it tells us that
judgment in impeachment cases has a limited reach. . .i.e., it cannot extend further than removal
from office and disqualification to hold any office under the Republic of the Philippines,
and second, it tells us the consequence of the limited reach of a judgment in impeachment
proceedings considering its nature, i.e., that the party convicted shall still be liable and subject to
prosecution, trial and punishment according to law. No amount of manipulation will justify
petitioners non sequitursubmission that the provision requires that his conviction in the
impeachment proceedings is a condition sine qua non to his prosecution, trial and punishment
for the offenses he is now facing before the respondent Ombudsman.
Petitioner contends that the private and public prosecutors walk out from the impeachment
proceedings should be considered failure to prosecute on the part of the public and private
prosecutors, and the termination of the case by the Senate is equivalent to acquittal.[40] He
explains failure to prosecute as the failure of the prosecution to prove the case, hence dismissal
on such grounds is a dismissal on the merits. [41] He then concludes that dismissal of a case for
failure to prosecute amounts to an acquittal for purposes of applying the rule against double
jeopardy.[42]
Without ruling on the nature of impeachment proceedings, we reject petitioners
submission.
The records will show that the prosecutors walked out in the January 16, 2001 hearing of
the impeachment cases when by a vote of 11-10, the Senator-judges refused to open the second
envelope allegedly containing the P3.3 billion deposit of the petitioner in a secret bank account
under the name Jose Velarde. The next day, January 17, the public prosecutors submitted a letter
to the Speaker of the House tendering their resignation. They also filed their Manifestation of
Withdrawal of Appearance with the impeachment tribunal. Senator Raul Roco immediately
moved for the indefinite suspension of the impeachment proceedings until the House of
Representatives shall have resolved the resignation of the public prosecutors. The Roco
motion was then granted by Chief Justice Davide, Jr. Before the House could resolve the issue
of resignation of its prosecutors or on January 20, 2001, petitioner relinquished the presidency
and respondent Arroyo took her oath as President of the Republic. Thus, on February
7, 2001, the Senate passed Resolution No. 83 declaring that the impeachment court is functus
officio.
Prescinding from these facts, petitioner cannot invoke double jeopardy. Double
jeopardy attaches only: (1) upon a valid complaint; (2) before a competent court; (3) after
arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or
convicted or the case was dismissed or otherwise terminated without the express consent of the
accused.[43]Assuming arguendo that the first four requisites of double jeopardy were complied
with, petitioner failed to satisfy the fifth requisite for he was not acquitted nor was the
impeachment proceeding dismissed without his express consent. Petitioners claim of double
jeopardy cannot be predicated on prior conviction for he was not convicted by the impeachment

court. At best, his claim of previous acquittal may be scrutinized in light of a violation of his
right to speedy trial, which amounts to a failure to prosecute. As Bernas points out, a 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.
[44]

This Court held in Esmea v. Pogoy[45], viz:

If the defendant wants to exercise his constitutional right to a speedy trial, he should
ask, not for the dismissal, but for the trial of the case. After the prosecutions motion
for postponement of the trial is denied and upon order of the court the fiscal does not
or cannot produce his evidence and, consequently fails to prove the defendants guilt,
the court upon defendants motion shall dismiss the case, such dismissall amounting to
an acquittal of the defendant.
In a more recent case, this Court held:

It is true that in an unbroken line of cases, we have held that the dismissal of cases on
the ground of failure to prosecute is equivalent to an acquittal that would bar further
prosecution of the accused for the same offense. It must be stressed, however, that
these dismissals were predicated on the clear right of the accused to speedy
trial. These cases are not applicable to the petition at bench considering that the right
of the private respondents to speedy trial has not been violated by the State. For this
reason, private respondents cannot invoke their right against double jeopardy.[46]
Petitioner did not move for the dismissal of the impeachment case against him. Even
assuming arguendo that there was a move for its dismissal, not every invocation of an accuseds
right to speedy trial is meritorious. While the Court accords due importance to an accuseds right
to a speedy trial and adheres to a policy of speedy administration of justice, this right cannot be
invoked loosely. Unjustified postponements which prolong the trial for an unreasonable length of
time are what offend the right of the accused to speedy trial.[47] The following provisions of the
Revised Rules of Criminal Procedure are apropos:

Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions,
the accused shall be entitled to the following rights:
(h) To have speedy, impartial and public trial.
Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once
commenced shall continue from day to day as far as practicable until terminated. It
may be postponed for a reasonable length of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the
case for continuous trial on a weekly or other short-term trial calendar at the earliest

possible time so as to ensure speedy trial. In no case shall the entire trial period
exceed one hundred eighty (180) days from the first day of trial, except as otherwise
authorized by the Supreme Court.
Petitioner therefore failed to show that the postponement of the impeachment
proceedings was unjustified, much less that it was for an unreasonable length of
time. Recalling the facts, on January 17, 2001, the impeachment proceeding was suspended until
the House of Representatives shall have resolved the issue on the resignation of the public
prosecutors. This was justified and understandable for an impeachment proceeding without a
panel of prosecutors is a mockery of the impeachment process. However, three (3) days from the
suspension or January 20, 2001, petitioners resignation supervened. With the sudden turn of
events, the impeachment court became functus officio and the proceedings were therefore
terminated. By no stretch of the imagination can the four-day period from the time the
impeachment proceeding was suspended to the day petitioner resigned, constitute an
unreasonable period of delay violative of the right of the accused to speedy trial.
Nor can the claim of double jeopardy be grounded on the dismissal or termination of
the case without the express consent of the accused. We reiterate that the impeachment
proceeding was closed only after the petitioner had resigned from the presidency, thereby
rendering the impeachment court functus officio. By resigning from the presidency, petitioner
more than consented to the termination of the impeachmment case against him, for he brought
about the termination of the impeachment proceedings. We have consistently ruled that when the
dismissal or termination of the case is made at the instance of the accused, there is no double
jeopardy.[48]
Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from
suit. His arguments are merely recycled and we need not prolong the longevity of the debate on
the subject. In our Decision, we exhaustively traced the origin of executive immunity in our
jurisdiction and its bends and turns up to the present time. We held that given the intent of the
1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner,
as a non-sitting President, cannot claim executive immunity for his alleged criminal acts
committed while a sitting President. Petitioners rehashed arguments including their thinly
disguised new spins are based on the rejected contention that he is still President, albeit, a
President on leave. His stance that his immunity covers his entire term of office or until June 30,
2004 disregards the reality that he has relinquished the presidency and there is now a new de
jurePresident.
Petitioner goes a step further and avers that even a non-sitting President enjoys immunity
from suit during his term of office. He buttresses his position with the deliberations of the
Constitutional Commission, viz:

Mr. Suarez. Thank you.


The last question is with reference to the Committees omitting in the draft proposal
the immunity provision for the President. I agree with Commissioner Nolledo that the
Committee 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 sentence 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 consider 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 the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification. [49]


Petitioner, however, fails to distinguish between term and tenure. The term means the
time during which the officer may claim to hold the office as of right, and fixes the interval after
which the several incumbents shall succeed one another. The tenure represents the term during
which the incumbent actually holds office. The tenure may be shorter than the term for reasons
within or beyond the power of the incumbent.[50] From the deliberations, the intent of the
framers is clear that the immunity of the president from suit is concurrent only with his
tenure and not his term.
Indeed, petitioners stubborn stance cannot but bolster the belief that the cases at bar were
filed not really for petitioner to reclaim the presidency but just to take advantage of the immunity
attached to the presidency and thus, derail the investigation of the criminal cases pending against
him in the Office of the Ombudsman.
V

Prejudicial Publicity on the Ombudsman

Petitioner hangs tough on his submission that his due process rights to a fair trial have been
prejudiced by pre-trial publicity. In our Decision, we held that there is not enough evidence to
sustain petitioners claim of prejudicial publicity. Unconvinced, petitioner alleges that the vivid
narration of events in our Decision itself proves the pervasiveness of the prejudicial publicity. He
then posits the thesis that doubtless, the national fixation with the probable guilt of petitioner
fueled by the hate campaign launched by some high circulation newspaper and by the bully
pulpit of priests and bishops left indelible impression on all sectors of the citizenry
and all regions, so harsh and so pervasive that the prosecution and the judiciary can no longer
assure petitioner a sporting chance.[51] To be sure, petitioner engages in exageration when he
alleges that all sectors of the citizenry and all regions have been irrevocably influenced by this

barrage of prejudicial publicity. This exaggeration collides with petitioners claim that he still
enjoys the support of the majority of our people, especially the masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the transaction
speaks for itself) to support his argument. Under the res ipsa loquitur rule in its broad sense, the
fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and
present a question of fact for defendant to meet with an explanation. [52] It is not a rule of
substantive law but more a procedural rule. Its mere invocation does not exempt the plaintiff
with the requirement of proof to prove negligence. It merely allows the plaintiff to present along
with the proof of the accident, enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence and to thereby place on the defendant the
burden of going forward with the proof.[53]
We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule usually applied
only in tort cases, to the cases at bar. Indeed, there is no court in the whole world that has
applied the res ipsa loquitur rule to resolve the issue of prejudicial publicity. We again stress
that the issue before us is whether the alleged pervasive publicity of the cases against the
petitioner has prejudiced the minds of the members of the panel of investigators. We reiterate the
test we laid down in People v. Teehankee,[54] to resolve this issue, viz:

We cannot sustain appellants claim that he was denied the right to impartial trial due
to prejudicial publicity. It is true that the print and broadcast media gave the case at
bar pervasive publicity, just like all high profile and high stake criminal trials. Then
and now, we rule that the right of an accused to a fair trial is not incompatible to a
free press. To be sure, responsible reporting enhances an accuseds right to a fair trial
for, as well pointed out , a responsible press has always been regarded as the
handmaiden of effective judicial administration, especially in the criminal field x x
x. The press does not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of sensational criminal cases. The
state of the art of our communication system brings news as hey happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair and impartial
judge is not that of a hermit who is out of touch with the world. We have not installed
the jury system whose members are overly protected from publicity lest they lost their
impartiality. x x x x x x x x x. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a

litigation. Their mere exposure to publications and publicity stunts does not per
se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial
judge due to the barrage of publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of
possibility of prejudice and adopted the test of actual prejudice as we ruled 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 barrage of
publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the
case does not prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity which is incapable of change even by evidence presented during
the trial. Appellant has the burden to prove this actual bias and he has not discharged
the burden.
Petitioner keeps on pounding on the adverse publicity against him but fails to prove
how the impartiality of the panel of investigators from the Office of the Ombudsman has
been infected by it. As we held before and we hold it again, petitioner has completely failed to
adduce any proof of actual prejudice developed by the members of the Panel of
Investigators. This fact must be established by clear and convincing evidence and cannot be left
to loose surmises and conjectures. In fact, petitioner did not even identify the members of the
Panel of Investigators.We cannot replace this test of actual prejudice with the rule of res ipsa
loquitur as suggested by the petitioner. The latter rule assumes that an injury (i.e., prejudicial
publicity) has been suffered and then shifts the burden to the panel of investigators to prove that
the impartiality of its members has been affected by said publicity. Such a rule will overturn our
case law that pervasive publicity is not per se prejudicial to the right of an accused to fair
trial. The cases are not wanting where an accused has been acquitted despite pervasive publicity.
[55]
For this reason, we continue to hold that it is not enough for petitioner to conjure possibility of
prejudice but must prove actual prejudice on the part of his investigators for the Court to sustain his
plea. It is plain that petitioner has failed to do so.
Petitioner agains suggests that the Court should order a 2-month cooling off period to allow
passions to subside and hopefully the alleged prejudicial publicity against him would die
down.We regret not to acquiesce to the proposal. There is no assurance that the so called 2month cooling off period will achieve its purpose. The investigation of the petitioner is a natural
media event.It is the first time in our history that a President will be investigated by the Office of
the Ombudsman for alleged commission of heinous crimes while a sitting President. His
investigation will even be monitored by the foreign press all over the world in view of its legal
and historic significance. In other words, petitioner cannot avoid the kleiglight of publicity. But
what is important for the petitioner is that his constitutional rights are not violated in the
process of investigation. For this reason, we have warned the respondent Ombudsman in our
Decision to conduct petitioners preliminary investigation in a circus-free atmosphere. Petitioner
is represented by brilliant legal minds who can protect his right as an accused.

VI

Recusation

Finally, petitioner prays that the members of this Honorable Court who went to EDSA put
on record who they were and consider recusing or inhibiting themselves, particularly those who
had ex-parte contacts with those exerting pressure on this Honorable Court, as mentioned in our
Motion of March 9, 2001, given the need for the cold neutrality of impartial judges.[56]
We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12)
members of the Court who merely accepted the invitation of the respondent Arroyo to attend her
oath taking. As mere spectators of a historic event, said members of the Court did not
prejudge the legal basis of the claim of respondent Arroyo to the presidency at the time she took
her oath.Indeed, the Court in its en banc resolution on January 22, 2001, the first working day
after respondent Arroyo took her oath as President, held in Administrative Matter No. 01-1-05
SC, to wit:

A.M. No. 01-1-05-SC In re: Request for Vice President Gloria Macapagal-Arroyo to
Take Her Oath of Office as President of the Republic of the Philippines before the
Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo
to be sworn in as President of the Republic of the Philippines, addressed to the Chief
Justice and confirmed by a letter to the Court, dated January 20, 2001, which request
was treated as an administrative matter, the court Resolved unanimously to confirm
the authority given by the twelve (12) members of the Court then present to the Chief
Justice on January 20, 2001 to administer the oath of office to Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may
be filed by a proper party.
The above resolution was unanimously passed by the 15 members of the Court. It should be
clear from the resolution that the Court did not treat the letter of respondent Arroyo to be
administered the oath by Chief Justice Davide, Jr., as a case but as an administrative matter. If it
were considered as a case, then petitioner has reason to fear that the Court has
predetermined the legitimacy of the claim of respondent Arroyo to the presidency. To dispel
the erroneous notion, the Court precisely treated the letter as an administrative matter and
emphasized that it was without prejudice to the disposition of any justiciable case that may
be filed by a proper party. In further clarification, the Court on February 20, 2001
issuedanother resolution to inform the parties and the public that it xxx did not issue a
resolution on January 20, 2001 declaring the office of the President vacant and that neither did
the Chief Justice issue a press statement justifying the alleged resolution. Thus, there is no
reason for petitioner to request for the said twelve (12) justices to recuse themselves. To be
sure, a motion to inhibit filed by a party after losing his case is suspect and is regarded with
general disfavor.

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the
case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to
the deprivation of the judicial power of the court itself. It affects the very heart of judicial
independence.[57] The proposed mass disqualification, if sanctioned and ordered, would leave the
Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices.[58]
IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and
his Omnibus Motion in G.R. No. 146738 are DENIED for lack of merit.
SO ORDERED.
Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., no part for reason given in open court and in the extended explanation.
Vitug, J., see separate concurring opinion.
Mendoza, J., see concurring opinion.
Kapunan, J., concurs on the result but strongly reiterate my separate opinion in the case.
Ynares-Santiago, J., concurs in the result but maintains separate opinion in the main
Decision.
Sandoval-Gutierrez, J., concurs in the result subject to separate opinion in the main
Decision.
Panganiban, J., no part see Extended Explanation of Inhibition prom. on March 8, 2001.

Decision, p. 35.

[2]

63C Am Jur 2d Public Officers and Employees, section 158.

[3]

See e.g., Comment of respondents de Vera, Funa and Capulong, p. 26; Rollo, Vol II. p. 204: Memorandum of
respondent Capulong Rollo, Vol. III, pp. 661, et seq.
[4]

See paragraph 6.1 on p. 5 of petitioners Second Supplemental Reply Memorandum.

[5]

Id., see paragraph 7 on pp. 7-8.

[6]

The myth of hearsay is that no one understands it, and students and practicing lawyers always make mistakes
about it. Best, Evidence, 59 (3rd ed., p. 59, 1999).
[7]

Francisco, Evidence, 513 citing 33 CJS 919.

[8]

Mueller and Kirkpatrick, Evidence under the Rules 116-117 (2nd ed., 1993); McCormick Evidence 93-94

[9]

See, generally, Swift, One Hundred Years of Evidence Law Reform: Thayers Triumph, 88 Cal. L. Rev. No. 6,
2437-2476 (2000). Swifts thesis is that the view of Thayer and other major twentieth century reformers advocating
increased discretion of trial judges to admit or exclude evidence has prevailed.
[10]

Evidence, Cases and Materials 473-474 (9th ed.). As well put by author Best, supra, p. 87, the supreme irony of
the hearsay doctrine is that a vast amount of hearsay is admissible at common law and under the Federal Rules. Our
hearsay rules are American in origin.

[11]

Admissions of a party should not be confused with declarations against interest, judicial admission and
confessions.
Admission distinguished from declaration against interest. An admission is distinguishable from a declaration
against interest in several respects. The admission is primary evidence and is receivable, although the declarant is
available as a witness; it is competent only when the declarant, or someone identified in legal interest with him, is a
party to the action; and need not have been considered by the decalrant as opposed to his interest at the time when it
was made. The declaration against interest is in the nature of secondary evidence, receivable only when the declarant
is unavailable as a witness; it is competent in any action to which it is relevant, although the declarant is not a party
to, or in privity with, any party to the action; and it must have been, when made, to the knowledge of the declarant,
against his obvious and real interest. (VIII Francisco, Evidence, 304 [1997 ed.])
Admission distinguished from confession.- The term admission is distinguished from that of confession. The former
is applied to civil transactions and to matters of fact in criminal cases not involving criminal intent, the latter to
acknowledgements of guilt in crimnal cases. (id., p. 303)
Judicial and extra-judicial admission defined.- A judicial admission is one so made in pleadings filed or in the
progress of a trial as to dispense with the introduction of evidence otherwise necessary to dispense with some rules
of practice necessary to be observed and complied with.
Extra-judicial admission is one made out of court.
The most important distinction between judicial and other admissions, is that strictly, judicial admissions are
conclusive upon the party making them, while other admissions are, as a rule and where the elements of estoppel are
not present, disputable. (id., p. 90)
[12]

Herrera, Evidence, 315-316.

[13]

Best, op cit., p. 90.

[14]

Herrera, op cit., p. 371, citing 2 Jones Sec. 13-28.

[15]

Evidence Under the Rules, 216 (2nd ed., 1993).

[16]

Section 32, Rule 130 provides: An act or declaration made in the presence and within the hearing or observation
of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if
not true, and when proper and possible for him to do so, may be given in evidence against him.
[17]

Phil. Daily Inquirer, February 5, 2001, p. A6.

[18]

Id., February 6, 2001, p. 1; Rollo, Vol. II, p. 250.

[19]

Section 29, Rule 130 states: the act or declaration of a partner or agent of the party within the scope of his
authority and during the existence of the partnership or agency, may be given in evidence against such party after the
partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other person jointly interested with the party.
[20]

Jones on Evidence, S. 944, p. 1741.

[21]

Moran, Evidence3, 298.

[22]

Jones, op cit., S. 1088, p. 2010.

[23]

Omnibus Motion, pp. 24-25, footnotes omitted.

[24]

Wigmore on Evidence, sec. 1191, p. 334.

[25]

Francisco, The Revised Rules of Court in the Philippines: Evidence 139 (1999), citing I Jones on Evidence, 390391.
[26]

Id., citing People v. Stuckrath, 64 Cal. App. 84, 220, p. 433; see also Suddayao, et al.v. Agatep, et al., 46 Off. Gaz.
1119.
[27]

Francisco, supra, p.129.

[28]

236 SCRA 505 (1994).

[29]

See Decision, p. 41.

[30]

See Petition in G.R. No. 146738, p. 7, further stating that no one apparently was around or willing to receive the
letter to the Senate President earlier.
[31]

See Annex A-1, Petition in G.R. No. 146738.

[32]

Decision, p. 12.

[33]

Decision, p. 13.

[34]

Ibid.

[35]

Decision, p. 12.

[36]

Omnibus Motion, p. 37.

[37]

Id., pp. 38-39.

[38]

Id., p. 39.

[39]

Section 4, Article VII of the Constitution states in part: The Supreme Court sitting en banc, shall be the sole judge
of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose.
[40]

Motion for Reconsideration, p. 5.

[41]

Id., p. 5, citing Bernas, The 1987 Constitution of the Philippines: A Commentary, 1996, p. 532.

[42]

Id., p. 5, citing People v. Diaz, 94 Phil. 714 and People v. Robles, 105 Phil. 1016.

[43]

Tecson v. Sandiganbayan, 318 SCRA 80 (1999).

[44]

Bernas, The Constitution of the Republic of the Philippines: A Commentary, 1987, p. 470.

[45]

102 SCRA 861 (1981), citing 4 Morans Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela v.
Lutero, 88 Phil. 299, 307 and People v. Diaz, 94 Phil. 714, 717.
[46]

People v. Leviste, 255 SCRA 238 (1996), citing People v. Tampal, 244 SCRA 202 (1995).

[47]

Tai Lim v. Court of Appeals, 317 SCRA 521 (1999).

[48]

People v. Quizada, 160 SCRA 516; Sta. Rita v. Court of Appeals, 247 SCRA 484; People v. Leviste, supra.

[49]

Motion for Reconsideration, GR Nos. 146710-15, p. 17.

[50]

Topacio Nueno, et al. vs. Angeles, et al., 76 Phil. 12, 21- 22.

[51]

Motion for Reconsideration, p. 27.

[52]

57B Am Jur 2d 493 (1989).

[53]

Ibid., pp. 502-503.

[54]

249 SCRA 54 (1995); see Martelino et al. v. Alejandro, et al., 32 SCRA 106 (1970); Webb v. de Leon, etc., 247
SCRA 652 (1995); Larranaga v. CA, et al., 289 SCRA 581 (1998).
[55]

People v. Ritter, 194 SCRA 690 (1991).

[56]

Omnibus Motion, p.55.

[57]

Vargas v. Rilloraza, et al., 80 Phil. 297 (1948).

[58]

Abbas, et al., v. Senate Electoral Tribunal, 166 SCRA 651 (1988).

Republic of the Philippines


SUPREME COURT
Manila
PRESIDENTIAL ELECTORAL TRIBUNAL
P.E.T. Case No. 003

January 18, 2008

LOREN B. LEGARDA, protestant,


vs.
NOLI L. DE CASTRO, protestee.
RESOLUTION
QUISUMBING, J.:
On June 23, 2004, Congress sitting as the National Board of Canvassers (NBC)
proclaimed1 protestee Noli L. de Castro the duly elected Vice-President of the Republic of the
Philippines. The official count of the votes cast for Vice-President in the May 10, 2004 elections
showed that the protestee obtained the highest number of votes, garnering 15,100,431 votes as
against the 14,218,709 votes garnered by the protestant Loren B. Legarda, who placed second, in a
field consisting of four candidates for Vice-President.
On July 23, 2004, the protestant filed this protest with this Tribunal praying for the annulment of the
protestee's proclamation as the duly elected Vice-President of the Republic of the Philippines. 2
The protest has two main parts. The First Aspect originally covered "all the erroneous, if not
manipulated, and falsified results as reflected in the final canvass documents" for 9,007 precincts in
six provinces, one city and five municipalities.3 Protestant avers that the correct results appearing in
the election returns were not properly transferred and reflected in the subsequent election
documents and ultimately, in the final canvass of documents used as basis for protestee's
proclamation. Protestant seeks the recomputation, recanvass and retabulation of the election returns
to determine the true result.
The Second Aspect required revision of ballots in 124,404 precincts specified in the protest. 4
The Tribunal confirmed its jurisdiction over the protest and denied the motion of protestee for its
outright dismissal. Protestee filed a motion for reconsideration arguing in the main that the Tribunal
erred in ruling that the protest alleged a cause of action sufficient to contest protestee's victory in the
May 2004 elections.5
On March 31, 2005, the Tribunal ruled that:
On the matter of sufficiency of the protest, protestee failed to adduce new substantial
arguments to reverse our ruling. We hold that while Pea v. House of Representatives
Electoral Tribunal on requisites of sufficiency of election protest is still good law, it is
inapplicable in this case. We dismissed the petition inPea because it failed to specify the
contested precincts. In the instant protest, protestant enumerated all the provinces,
municipalities and cities where she questions all the results in all the precincts therein.
The protest here is sufficient in form and substantively, serious enough on its face to pose a

challenge to protestee's title to his office. In our view, the instant protest consists of alleged
ultimate facts, not mere conclusions of law, that need to be proven in due time.
Considering that we find the protest sufficient in form and substance, we must again stress
that nothing as yet has been proved as to the veracity of the allegations. The protest is
only sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her
case pursuant to Rule 61 of the PET Rules. Although said rule only pertains to revision of
ballots, nothing herein prevents the Tribunal from allowing or including the correction of
manifest errors, pursuant to the Tribunal's rule-making power under Section 4, Article VII of
the Constitution.
On a related matter, the protestant in her reiterating motion prays for ocular inspection and
inventory-taking of ballot boxes, and appointment of watchers. However, the Tribunal has
already ordered the protection and safeguarding of the subject ballot boxes; and it has
issued also the appropriate directives to officials concerned. At this point, we find no showing
of an imperative need for the relief prayed for, since protective and safeguard measures are
already being undertaken by the custodians of the subject ballot boxes.
WHEREFORE, protestee's motion for reconsideration is hereby DENIED WITH
FINALITY for lack of merit. Protestant's reiterating motion for ocular inspection and
inventory-taking with very urgent prayer for the appointment of watchers is also DENIED for
lack of showing as to its actual necessity.
Further, the protestant LOREN B. LEGARDA is ORDERED to specify, within ten (10) days
from notice, the three (3) provinces best exemplifying the manifest errors alleged in the first
part of her protest, and three (3) provinces best exemplifying the frauds and irregularities
alleged in the second part of her protest, for the purpose herein elucidated.
Lastly, the Tribunal hereby ORDERS the Commission on Elections to SUBMIT, within 30
days hereof, the official project of precincts of the May 2004 Elections.
SO ORDERED.6
On April 11, 2005, protestant identified three (3) provinces as pilot areas best exemplifying her
grounds for theFirst Aspect of the protest. She chose the provinces of Lanao del Sur, Lanao del
Norte, and Surigao del Sur with the following number of protested precincts: 1,607, 2,346 and 350,
respectively, or a total of 4,303 out of the original 9,007 precincts.7
On June 21, 2005, the Tribunal ascertained8 the number of ballot boxes subject of the protest, to wit:
The Tribunal Resolved to NOTE the Letter dated 30 May 2005 filed by Executive Director Pio
Jose S. Joson, COMELEC, in compliance with the Letter dated 14 April 2005 of Atty.
Luzviminda D. Puno, Acting Clerk of the Tribunal, informing the Tribunal that one thousand
four hundred fifty-four (1,454) ballot boxes are involved in the precincts of the province of
Surigao del Sur which the protestant has identified to the Tribunal as best exemplifying the
irregularities in connection with the 10 May 2004 National and Local Elections.
Accordingly, without prejudice to its recomputation, the number of ballot boxes involved in
the precincts of the provinces which the protestant has identified to the Tribunal as best
exemplifying the irregularities in connection with the said elections are as follows:

Lanao del Sur

1,568

Lanao del Norte

2,317

Surigao del Sur

1,454

Cebu City

10,127

Pampanga

5,458

Maguindanao

1,755

Total

22,679 ballot boxes involved in the precincts

x P500.00

P11,339,500.00

On November 2, 2005 protestant moved to withdraw and abandon almost all pilot precincts in
the First Aspectexcept those in the province of Lanao del Sur.9 On November 22, 2005, the Tribunal
granted the said motion withdrawing and abandoning the protest involving the manifest errors in the
municipalities of Lanao del Norte and Surigao del Sur.10
Thereafter, proceedings duly ensued concerning both the First and Second Aspects. Former
Associate Justice Bernardo P. Pardo as Hearing Commissioner 11 heard the presentation of evidence
of both parties for the First Aspect. Subpoenas were issued to the witnesses of the protestant, e.g.
the President/General Manager of Ernest Printing Corporation12 and then Commission on Elections
Chairman Benjamin Abalos.13 On August 28, 2006, a preliminary conference was called by Hearing
Commissioner Bernardo P. Pardo to schedule the presentation of evidence. The latter then ordered
as follows:
Pursuant to the Resolution of the Tribunal dated 22 August 2006, setting the preliminary
conference of the parties with the Hearing Commissioner today, the designated Hearing
Commissioner called the preliminary conference in order to consider the order of hearing

and presentation of evidence of the parties according to the procedure prescribed in the
Resolution of the Tribunal of 1 August 2006, under paragraph B (1 and 2).
The following are the appearances:
1) Protestant Loren B. Legarda, in person;
2) Atty. Sixto S. Brillantes, Jr. and Atty. Jesus P. Casila, for the protestant;
3) Protestee Noli L. de Castro did not appear;
4) Atty. Armando M. Marcelo and Atty. Carlo Vistan, for the protestee.
Atty. Brillantes manifested that the protestant is ready to adduce testimonial and
documentary evidence on a date to be scheduled and agreed upon by the parties; they have
about seven witnesses to testify on the first aspect as indicated in the Tribunal's Resolution
of 1 August 2006. He suggested 6 September 2006 as the initial date of the hearing. Atty.
Marcelo stated that he was leaving for abroad on 6 September 2006 for one month and
suggested a hearing after his return in October 2006. At any rate, protestee has a pending
motion for reconsideration of the Tribunal's Resolution of 22 August 2006 designating a
retired Justice of the Supreme Court as Hearing Commissioner. They wanted an incumbent
Justice of the Supreme Court or an official of the Tribunal who is a member of the Bar to be
the designated Hearing Commissioner.
The undersigned Hearing Commissioner suggested that the initial hearing be held on 4
September 2006, at 10:00 a.m., when protestee's counsel will still be in town, without
prejudice to the resolution of the Tribunal on his motion for reconsideration.
The undersigned Hearing Commissioner suggested to protestant's counsel to submit by this
afternoon the list of the names of the proposed witnesses and documents to be produced so
that the proper process may be issued to them.
The undersigned Hearing Commissioner set the initial hearing tentatively on Monday, 4
September 2006, at 10:00 a.m., at the same venue, subject to the Tribunal's ruling on
protestee's motion for reconsideration of the person of the Hearing Commissioner, and
protestant to submit by this afternoon the list of witnesses and documents to be produced at
the hearing.
IT IS SO ORDERED.14
Several hearings on the First Aspect were held wherein the protestant adduced evidence and the
protestee interposed his continuing objection to such in the form of motions and comments. Months
of continuous trial took place until the Hearing Commissioner made his final report of the
proceedings for detailed consideration by the Tribunal.
On January 31, 2006, while the case was sub judice, the Tribunal ordered both parties to refrain
from sensationalizing the case in the media. Its extended resolution on the matter reads as follows:
On December 12, 2005, the re-tabulation of election returns (ERs) from the ten (10)
protested municipalities of Lanao del Sur commenced. According to the report submitted by
the Acting Clerk of the Tribunal, Atty. Maria Luisa D. Villarama, the correction team was able

to re-tabulate only the ERs from four (4) of the ten (10) protested municipalities of Lanao del
Sur, namely, Balindong, Masiu, Mulondo and Taraka. The ERs of the other six (6) protested
municipalities were not found inside the ballot boxes collected from the House of
Representatives, but found were the ERs from municipalities not subject of the protest.
Therefore, acting on the aforementioned report of the Acting Clerk, the Tribunal resolves
to REQUIRE Hon. Roberto Nazareno, Secretary General of the House of Representatives
and Atty. Artemio Adasa, Jr., Deputy Secretary General for Operation, of the House of
Representatives, within a non-extendible period of five (5) days from notice, to
(a) DELIVER to the Tribunal the election returns and other election
documents/paraphernalia used in the May 2004 National/Local elections for the
remaining six (6) protested municipalities of Lanao del Sur, namely (1) BacolodKalawi; (2) Ganassi; (3) Kapai; (4) Sultan Gumander; (5) Tamparan; and (6) Wao;
(b) EXPLAIN why the election returns and other election documents and
paraphernalia which were turned over to the PET Retrieval Team are incomplete
when compared to the COMELEC's total number of clustered precincts for Lanao del
Sur; and
(c) SUBMIT to the Tribunal the complete list of all the election returns,
Provincial/District Certificates of Canvass and Statements of Votes and other election
documents and paraphernalia used in the May 2004 National and Local Elections for
the province of Lanao del Sur which were in its official custody.
In the resolution dated December 6, 2005, the Tribunal granted protestant's motion to
suspend the remittance of additional cash deposit amounting to P3,882,000 as required in
the resolution of November 22, 2005. Protestant also manifested in said motion that she will
make the required cash deposit sometime in the year 2006. Thus, the Tribunal resolves
to REQUIRE protestant to comply with the resolution of November 22, 2005 requiring her to
make additional cash deposit of P3,882,000 within ten (10) days.
On another matter, the Presidential Electoral Tribunal notes the following news reports:
(1) In an article entitled "Recount shows fraud, says Legarda" appearing in the
December 13, 2005 issue of The Manila Times, protestant Legarda said that the
election returns from Congress had been tampered after initial retabulation of votes
by the Tribunal showed that the lead of protestee De Castro over her has widened.
She added that this discovery confirmed her claim of massive poll fraud in favor of
protestee in the 2004 election.
(2) In an article entitled "Intel feelers offer proof of poll fraud to Loren" published in
the December 13, 2005 issue of The Daily Tribune, sources from protestant's legal
team said that feelers from the military's intelligence service arm have reached their
camp offering videotapes of cheating in the 2004 elections for a price they cannot
afford.
(3) In another article entitled "Election returns altered inside Congress-Loren"
published in the December 15, 2005 issue of Philippine Daily Inquirer, protestant
claimed that the altering of election returns from Lanao del Sur occurred right inside
Congress as borne out by the "spurious" returns being retabulated by the Tribunal.
She said the crime could have been perpetrated by the operatives of protestee.

(4) In a news article entitled "Cebu recount shows Noli, Loren votes tally with NBC"
appearing in the January 6, 2006 issue of The Manila Times, Atty. Romulo Macalintal,
counsel of protestee, stated that "the initial recount in Lapu-lapu showed that there
was no tampering of the ballot boxes in the city," and further noted that the four (4)
out of the 40 ballot boxes "contained tampered or spurious ballots, but these are not
connected to the protest of Senator Legarda but on local protests."
(5) In an article entitled "Noli condemns tampering of ballots" appearing in the
January 6, 2006 issue of Manila Standard Today, Atty. Armando Marcelo said that
their revisors at the PET discovered that several ballots of Legarda had been
substituted with fake and spurious ballots. Atty. Macalintal added that "the
substitution of ballots was so clear, that the security markings of the substitute ballots
were not reflected or visible or that the ultraviolet markings of the COMELEC seal do
not appear or are not present", and that "these ultraviolet markings are readily visible
in a genuine ballot once lighted with an ultraviolet light."
(6) In an article entitled "No cheating in Cebu, Noli's lawyer insists," published in the
January 19, 2006 issue of Philippine Daily Inquirer, Atty. Macalintal said that "the
results of the actual count of the ballots for Legarda and De Castro from the cities of
Mandaue and Lapu-lapu tallied with the results as reflected in the election returns
and tally boards. There was no sign of any tampering of the results of the ballot count
as well as the votes reflected on the returns and tally boards." He also said that
protestant Legarda is already estopped from questioning the results of the election in
these cities since she failed to object to the returns.
(7) In an article entitled "GMA-Noli poll win in Cebu affirmed," published in the
January 19, 2006 issue of The Philippine Star, it was reported that Atty. Macalintal, in
his speech before the Rotary Club of Pasay City, denied protestant's claim that 90
percent of the ballots from two major cities of the province were found to be spurious
by the Tribunal. He added that "if a candidate would allow himself to be cheated by
90 percent, then he or she has no business to be in politics."
(8) In an article entitled "Why Noli is unacceptable" appearing in the January 20,
2006 issue of The Daily Tribune, protestant "told the media that the real ballots from
Mandaue City and Lapu-lapu City were 'clearly substituted with fakes so that they
would correspond with the similarly spurious results reflected in the election returns
(ERs).'"
Surely, the parties do not harbor the idea that the re-tabulation of election returns and
revision of ballots is the end of the election protest. They are merely the first phase of the
process and must still pass closer scrutiny by the Tribunal.
The great public interest at stake behooves the Tribunal to exercise its power and render
judgment free from public pressure and uninterrupted by the parties' penchant for media
mileage. Therefore, in view of the foregoing reports where press statements of both parties
appeared as an attempt to influence the proceedings, convince the public of their version of
facts, and create bias, prejudice and sympathies, the Tribunal resolves to WARN both parties
and counsels from making public comments on all matters that aresub judice.
Finally, acting on the pleadings filed in this electoral protest case, the Tribunal further
Resolves to

(a) NOTE the Comment on Protestee's Motion to Allow Revisors to Examine All
Ballots dated January 24, 2006, filed by counsel for protestant Legarda, in
compliance with the resolution of January 17, 2006, informing the Tribunal that she
interposes no objection and opposition to the motion and GRANT the aforesaid
motion of the protestee;
(b) DIRECT all Head Revisors to ALLOW the parties to examine the ballots within a
reasonable time;
(c) NOTE the Manifestation dated January 24, 2006, filed by counsel for protestant
relative to the Motion to Intervene filed by Intervenor/Movant Amytis D. Batao,
informing the Tribunal that she is not waiving the revision of the thirty-five (35) ballot
boxes subject of the electoral protest for the mayoralty post of Carmen, Cebu, and
proposing that priority be given and extended to the same so that upon completion of
the revision by the Tribunal, said ballot boxes can be returned to the Regional Trial
Court of Mandaue City, at the earliest time possible; and
(d) DENY the above Motion to Intervene of Intervenor/Movant Amytis D. Batao, with
regard to the return of the ballot boxes considering that the Tribunal has priority in
their possession and examination." Ynares Santiago, J., no part. 15
Revision of ballots was also conducted for the Second Aspect in the Tribunal's premises by the duly
designated officials and trained personnel with both parties duly represented. After ten months of
continuous work by twenty-four revision teams, under the supervision of Atty. Orlando Cario as the
designated Consultant, the revision of the ballots from the pilot province of Cebu was completed.
Revision also started for the second pilot province of Pampanga, but was suspended after the
Tribunal granted the protestee's Motion for Partial Determination of Election Protest Based on the
Results of the Revision of Ballots of the Province of Cebu and the Recanvass of Election Returns
from Lanao Del Sur and to Hold in Abeyance Revision of Ballots from Pampanga. 16
On May 3, 2007, the protestant was required to deposit P3,914,500 for expenses necessary for the
continuation of the revision of ballots.17 But protestant failed to pay on the due date. Thus, protestee
moved to dismiss the protest. The Tribunal extended the period for protestant to make the necessary
deposit. Even with this extension, she still failed to pay. Thus, in a Resolution dated June 5, 2007,
the Tribunal partially granted the protestee's motion to dismiss pursuant to Rule 33 18 of PET rules,
and ordered the dismissal of the Second Aspect of the protest as follows:
PET Case No. 003 (Loren B. Legarda vs. Noli L. de Castro). - Acting on the protestee's
Motion to Dismiss dated May 9, 2007, the Tribunal Resolved to
(a) PARTIALLY GRANT the aforesaid motion pursuant to Rule 33 of the 2005 PET
Rules; and
(b) DISMISS the second aspect of the protest (revision of ballots), for protestant's
failure to make the required deposit.
The Tribunal further Resolved to DENY the request of Atty. Eric C. Reginaldo in his letter
dated May 29, 2007 that he be furnished with a copy of the petition in this case for case
study, as he is neither a party nor a counsel of any party in this protest. 19

On June 13, 2007, Hearing Commissioner Bernardo P. Pardo submitted to the Tribunal a Report of
the Proceedings of the First Aspect.20
On June 18 2007, protestant filed an Urgent Motion to Resolve First Aspect of the Protest, stating
that she formally moved for the immediate resolution of the submitted portion of the First Aspect of
the protest.21Protestee did not interpose any objection to this motion.
On July 10, 2007, the Tribunal resolved to note the report of the Hearing Commissioner. In response
to the motion filed by the protestant, the Tribunal required the parties to submit their respective
memoranda within twenty days from notice, pursuant to Rule 6122 of the PET Rules.23
On August 2, 2007, by counsel protestant submitted her memorandum.24 On August 16, 2007, also
by counsel protestee filed his memorandum.25
On October 1, 2007, Hearing Commissioner Bernardo P. Pardo submitted his Final Report of the
Proceedings on the First Aspect. After a thorough analysis of the parties' memoranda and the results
of the proceedings on the protest, he recommended the dismissal of the First Aspect.26
For her part, protestant filed a memorandum stating that based on the pieces of evidence she
presented, both documentary and testimonial, she has shown that electoral fraud or cheating was
committed through the so-called dagdag-bawas strategy in the elections for President and VicePresident held last May 14, 2004. Protestant in particular submitted that electoral fraud was
perpetuated as follows:
1. That the correct votes of the parties were properly recorded and tabulated in the election
returns (ERs), wherein she garnered a higher number of votes over protestee De Castro; 27
2. That when the ERs were canvassed at the municipal level, the ER results were "wrongly
and erroneously" transposed and transferred to the Statement of Votes by Precinct (SOV-P),
such that the protestee was given a higher number of votes;28
3. That the inaccurate results shown in the SOV-P were totaled and transferred to the
Municipal Certificate of Canvass (MCOC), with protestee prevailing over protestant; 29
4. That the MCOC, with incorrect totals, was transmitted to the Provincial Board of
Canvassers, wherein the inaccurate MCOC totals were transposed to the Statement of Votes
by Municipalities (SOV-M);30
5. That the numbers reflected in the individual SOV-Ms were totaled, and the sum for the
whole province was indicated in the Provincial Certificate of Canvass (PCOC); 31
6. That the PCOCs, with the erroneously transposed totals stemming from the incorrect
SOV-Ps, were the ones canvassed by Congress, acting as the National Board of Canvassers
for the presidential and vice-presidential positions;32 and
7. That Congress, sitting as the National Board of Canvassers, merely "noted" and denied
protestant's request to view the precinct-source ERs, and proceeded to canvass the
"already-manipulated/dagdag-bawas" PCOCs, resulting in the flawed and farcical victory of
protestee De Castro.33

Protestant avers that fraud, by means of the anomalous election practices, was sufficiently proven
by using her sample-pilot precincts in two municipalities in Lanao del Sur, particularly Balindong and
Taraka. She likewise alleges that the "dagdag-bawas" scheme, which was perpetrated through the
deliberate and erroneous transposition of results from the authentic ERs to the SOV-Ps, was further
aggravated by an alleged cover-up operation to hide the same. According to protestant, the
Congress-retrieved copies of the ERs which tally with the SOV-Ps, were fake and spurious; they
were intended to cover-up the electoral fraud committed. Protestant submits that the correct voting
results are those reflected in the COMELEC and NAMFREL's copies of the ERs, not those in the
copies retrieved from Congress.
Protestant further claims that while she presented pieces of evidence, both testimonial and
documentary, in only two municipalities of Lanao del Sur, i.e., Balindong and Taraka, to prove the
electoral fraud perpetrated through the dagdag-bawas strategy, she could have shown that such
fraudulent machination was replicated in several other municipalities of Lanao del Sur and other
provinces, such as Basilan, Sulu, Tawi-Tawi, Maguindanao, Sultan Kudarat, and Lanao del Sur if she
had enough time.
Protestee, for his part, argues that the Congress-retrieved ERs are public documents as defined
under Section 19 (a),34 Rule 132 of the Rules of Court, and thus, they enjoy the presumption of
regularity accorded thereto, and they are prima facie evidence of the facts stated therein. He avers
that there is prima facie presumption that the Congress-retrieved copies of the ERs are genuine,
authentic and duly executed. Protestee submits that protestant has failed to rebut such presumption
with clear and convincing evidence.
Protestee adds that a blank or unused ER form duly authenticated by the COMELEC, with the
correct and complete set of security features and markings, should have been marked and offered
as evidence, to serve as basis for comparison with the various sets of ERs presented to prove the
genuiness of the security features and markings in the ER forms. On this score, according to
protestee, the protestant's counsel has failed in his task. At any rate, protestee points out that the
witnesses presented by protestant, i.e., COMELEC Chairman Benjamin S. Abalos and Mr. Robert
Payongayong of the Ernest Printing Corporation, testified that they were able to discern security
features and markings in the Congress-retrieved copies of the ERs. Protestee also claims that when
Mr. Payongayong testified about the security features on the Congress' copies, he was shown only a
sample set thereof, and was not able to examine all Congress' copies being contested. Protestee
thus concludes that the Tribunal cannot rely on the testimonies of the protestant's witnesses
debunking the authenticity of the Congress-retrieved copies vis--vis the other sets of ER copies.
Protestee further contends that, assuming arguendo that the results reflected in the COMELEC,
NAMFREL and MBOC's35 copies of the ERs are re-tabulated, in lieu of the results in the Congressretrieved copies, or even if all the votes in the 497 precincts included in the pilot areas, as well as in
the remaining protested precincts in theFirst Aspect, are counted in favor of protestant, said votes
would be insufficient to overcome the lead of the protestee totaling 881,722 votes. Hence, in view of
the failure of the protestant to make out her case for the First Aspect of the protest, the same and
ultimately the protest in its entirety, must be dismissed without consideration of the other provinces
mentioned.
The Hearing Commissioner further recommended, following the precedent set in Defensor-Santiago
v. Ramos,36that the protest be dismissed for being moot and academic due to abandonment and
withdrawal resulting from protestant's election and assumption of office as senator. He also
emphasized that assuming that dagdag-bawashad indeed occurred and that the results in the
COMELEC's ER copies indicated in Annex "A" were to be used for re-tabulation, protestant would be
entitled to an additional 4,912 votes for the municipality of Taraka and 5,019 votes for Balindong, or

a total of 9,931 votes, which is not adequate to surpass protestee's lead of 881,722 votes over
protestant.
On protestant's charges of electoral fraud allegedly aggravated by a cover-up operation that
switched or exchanged the Congress' ER copies with spurious ones, the Hearing Commissioner
stressed that the Congress-retrieved ERs are public documents which enjoy the presumption of
regularity and are prima facie evidence of the facts stated therein. He concluded that the protestant
failed to adequately and convincingly rebut the presumption. The Hearing Commissioner also
emphasized that protestant failed to substantiate sufficiently her claim that the Congress-retrieved
ERs are spurious and were switched with the authentic copies during an alleged break-in at the
storage area of the House of Representatives as no evidence was presented to prove such break-in.
Hence, the alleged discrepancies found in NAMFREL, MBOC and COMELEC's copies of the ERs
are insufficient to exclude the Congress-retrieved ER copies from the re-tabulation. The Hearing
Commissioner also observed that in 11 out of the 51 precincts in Balindong, Lanao del Sur, there are
similar entries in the Congress-retrieved ERs and in the COMELEC's copies of the ERs, where
protestant garnered a higher number of votes over protestee, while the entries in the respective
SOV-Ms are different in that the protestee received more votes, belying protestant's assertion that
the Congress-retrieved ERs should all be disregarded since the results therein differ from those in
the COMELEC's copies of ERs and that they have been manipulated to favor protestee.
Consequently, according to the Hearing Commissioner's report, protestant failed to make out her
case.
Thus, the Hearing Commissioner recommended that the protestant's Motion to Resolve the First
Aspect of the Protest under consideration should be denied, and consequently, the protest itself, be
dismissed for lack of legal and factual basis, as the pilot-tested revision of ballots or re-tabulation of
the certificates of canvass would not affect the winning margin of the protestee in the final canvass
of the returns, in addition to the ground of abandonment or withdrawal by reason of her candidacy
for, election and assumption of office as Senator of the Philippines.37
After thorough deliberation and consideration of the issues in this case, this Tribunal finds the
abovestated recommendations of its Hearing Commissioner well-taken, and adopts them for its own.
Further, we are also in agreement that the protestant, in assuming the office of Senator and
discharging her duties as such, which fact we can take judicial notice of, 38 has effectively abandoned
or withdrawn her protest, or abandoned her determination to protect and pursue the public interest
involved in the matter of who is the real choice of the electorate. The most relevant precedent on this
issue is Defensor-Santiago v. Ramos,39 a decision rendered by this Tribunal, which held that:
The term of office of the Senators elected in the 8 May 1995 election is six years, the first
three of which coincides with the last three years of the term of the President elected in the
11 May 1992 synchronized elections. The latter would be Protestant Santiago's term if she
would succeed in proving in the instant protest that she was the true winner in the 1992
elections. In assuming the office of Senator then, the Protestant has effectively abandoned
or withdrawn this protest, or at the very least, in the language ofMoraleja, abandoned her
"determination to protect and pursue the public interest involved in the matter of who is the
real choice of the electorate." Such abandonment or withdrawal operates to render moot the
instant protest. Moreover, the dismissal of this protest would serve public interest as it would
dissipate the aura of uncertainty as to the results of the 1992 presidential election, thereby
enhancing the all-[too] crucial political stability of the nation during this period of national
recovery.

It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an
election protest may be summarily dismissed, regardless of the public policy and public
interest implications thereof, on the following grounds:
(1) The petition is insufficient in form and substance;
(2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof;
(3) The filing fee is not paid within the periods provided for in these Rules;
(4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after
the filing of the protest; and
(5) The petition or copies thereof and the annexes thereto filed with the Tribunal are
not clearly legible.
Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply
in a suppletory character, may likewise be pleaded as affirmative defenses in the answer.
After which, the Tribunal may, in its discretion, hold a preliminary hearing on such grounds. In
sum, if an election protest may be dismissed on technical grounds, then it must be, for a
decidedly stronger reason, if it has become moot due to its abandonment by the Protestant. 40
In the case at bar, protestant's tenure in the Senate coincides with the term of the Vice-Presidency
2004-2010, that is the subject of her protest. In Defensor-Santiago v. Ramos, the protestant's tenure
in the Senate also coincided with the term of the Presidency she was vying for. Like the protestant in
the aforementioned case, the protestant in the case at bar filed her certificate of candidacy for the
Senate, campaigned for the office, assumed office after election, and discharged the duties and
functions of said office. Thus, we agree concerning the applicability of the Defensor-Santiago case
as a precedent in the resolution of the present protest, though they differ in that DefensorSantiago's case involves the Presidency while Legarda's protest concerns only the Vice-Presidency.
On the matter of the alleged spurious ER copies, we agree with the protestee that the protestant had
not adequately and convincingly rebutted the presumption that as public documents, the Congressretrieved ER copies, used for the proclamation of the protestee by the NBC, are authentic and duly
executed in the regular course of official business. The evidence adduced by protestee to show that
the supposed security features and markings in the Congress-retrieved ERs and the
COMELEC/NAMFREL's copies are different, did not categorically establish that the Congressretrieved ERs are fake and spurious. To overcome the presumption of regularity, there must be
evidence that is clear, convincing and more than merely preponderant. Absent such convincing
evidence, the presumption must be upheld.41 In fact, the records show that even the witnesses
presented by the protestant testified that they were able to discern security features and markings in
the Congress-retrieved ERs. The records also show that witnesses were not made to examine all
Congress-retrieved ERs in making observations relative to security features and markings, but only
a sample set thereof was utilized, resulting in grave insufficiency in the evidence presented by
protestant.
As to the alleged break-in in Congress, which allegedly facilitated the switching of ERs, no
conclusive evidence has been given. One of the protestant's own witnesses, Atty. Artemio Adasa,
Deputy General for Legislative Operations of the House of Representatives, categorically denied that
a break-in and a switching of ERs had occurred in Congress.42

At any rate, as pointed out by protestee, even assuming arguendo that all the votes in the 497
precincts included in the pilot areas for the First Aspect with approximately 99,400 votes are
considered in favor of protestant, still the protestant would not be able to overcome the lead of the
protestee. The margin in favor of protestee adds up to a total of 881,722 votes, and it would take
much more than a hundred thousand votes to overcome this lead. This is what the protestant had
set out to do in her protest before the Tribunal, but unfortunately she failed to make out her case. 43 In
fact, Taraka and Balindong, the only two municipalities on which protestant anchors her arguments
for the First Aspect, would only yield an additional 9,931 votes (4,912 votes for Taraka and 5,019
votes for Balindong), a mere fraction of the lead of protestee over protestant. To say that she could
have shown that such fraudulent machination was replicated in several other municipalities of Lanao
del Sur and other provinces, such as Basilan, Sulu, Tawi-Tawi, Maguindanao, Sultan Kudarat and
Lanao del Sur if she had enough time, is mere conjecture and can not be considered convincing by
this Tribunal. It is the protestant herself who admits that she was able to adduce evidence only in
Taraka and Balindong, for lack of time. But this Tribunal has been liberal in granting her plea for time
extension. To say that the protestant had shown enough evidence to prove that the whole or even
half (440,862)44 of the lead of the protestee over the protestant is spurious, would go against the
grain of the evidence on hand. One cannot say that half a million votes were illegally obtained based
on unclear evidence of cheating in less than ten thousand. The protestant has been afforded ample
opportunity to adduce evidence in her behalf for the First Aspect of the protest but the evidence
presented is simply insufficient to convince the Tribunal to render invalid all or even half of the
881,722 votes that protestee had over her in the last elections for Vice-President.
WHEREFORE, the First Aspect of the protest is hereby DISMISSED for lack of legal and factual
basis, as the pilot-tested revision of ballots or re-tabulation of the certificates of canvass would not
affect the winning margin of the protestee in the final canvass of the returns, in addition to the
ground of abandonment or withdrawal by reason of protestant's candidacy for, election to and
assumption of the office of Senator of the Philippines. The Second Aspect, having been already
DISMISSED on June 5, 2007, pursuant to Rule 33 of this Tribunal, the entire Protest is now
deemed DISMISSED and TERMINATED.
SO ORDERED.
Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, CarpioMorales, Azcuna, Tinga, Nachura, Reyes, Leonardo-de-Castro, JJ., concur.
Chico-Nazario, J., on official leave.
Velasco, Jr., J., on leave.

APPOINTMENT

EN BANC
AQUILINO Q. PIMENTEL, JR.,
EDGARDO J. ANGARA,
JUAN PONCE ENRILE,
LUISA P. EJERCITO-ESTRADA,
JINGGOY E. ESTRADA,
PANFILO M. LACSON,
ALFREDO S. LIM,
JAMBY A.S. MADRIGAL, and
SERGIO R. OSMEA III,
Petitioners,

G.R. No. 164978

Present:
Davide, Jr., C.J.,
Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
Austria-Martinez,
- versus Corona,
Carpio Morales,
EXEC. SECRETARY EDUARDO
Callejo, Sr.,
R. ERMITA, FLORENCIO B. ABAD, Azcuna,
AVELINO J. CRUZ, JR.,
Tinga,
MICHAEL T. DEFENSOR, Chico-Nazario, and
JOSEPH H. DURANO, Garcia, JJ.
RAUL M. GONZALEZ,
ALBERTO G. ROMULO,
RENE C. VILLA, and Promulgated:
ARTHUR C. YAP,
Respondents. October 13, 2005
x-----------------------------------------------------x

DECISION
CARPIO, J.:
The Case

This is a petition for certiorari and prohibition[1] with a prayer for the
issuance of a writ of preliminary injunction to declare unconstitutional the

appointments issued by President Gloria Macapagal-Arroyo (President Arroyo)


through Executive Secretary Eduardo R. Ermita (Secretary Ermita) to Florencio B.
Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M.
Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap (respondents) as
acting secretaries of their respective departments. The petition also seeks to
prohibit respondents from performing the duties of department secretaries.
Antecedent Facts

The Senate and the House of Representatives (Congress) commenced their


regular session on 26 July 2004. The Commission on Appointments, composed of
Senators and Representatives, was constituted on 25 August 2004.
Meanwhile, President Arroyo issued appointments[2] to respondents as acting
secretaries of their respective departments.
Appointee
Arthur C. Yap
Alberto G. Romulo
Raul M. Gonzalez
Florencio B. Abad
Avelino J. Cruz, Jr.
Rene C. Villa
Joseph H. Durano
Michael T. Defensor

Department
Agriculture
Foreign Affairs
Justice
Education
National Defense
Agrarian Reform
Tourism
Environment and Natural Resources

The appointment papers are uniformly worded as follows:


Sir:

Date of Appointment
15 August 2004
23 August 2004
23 August 2004
23 August 2004
23 August 2004
23 August 2004
23 August 2004
23 August 2004

Pursuant to the provisions of existing laws, you are hereby appointed


ACTING SECRETARY, DEPARTMENT OF (appropriate department) vice (name
of person replaced).
By virtue hereof, you may qualify and enter upon the performance of the
duties and functions of the office, furnishing this Office and the Civil Service
Commission with copies of your Oath of Office.
(signed)
Gloria Arroyo

Respondents took their oath of office and assumed duties as acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel), Edgardo J.
Angara (Senator Angara), Juan Ponce Enrile (Senator Enrile), Luisa P. EjercitoEstrada (Senator Ejercito-Estrada), Jinggoy E. Estrada (Senator Estrada), Panfilo
M. Lacson (Senator Lacson), Alfredo S. Lim (Senator Lim), Jamby A.S. Madrigal
(Senator Madrigal), and Sergio R. Osmea, III (Senator Osmea) (petitioners) filed
the present petition as Senators of the Republic of the Philippines.

Congress adjourned on 22 September 2004. On 23 September 2004,


President Arroyo issued ad interim appointments[3] to respondents as secretaries of
the departments to which they were previously appointed in an acting capacity. The
appointment papers are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed
SECRETARY [AD INTERIM], DEPARTMENT OF (appropriate department).

By virtue hereof, you may qualify and enter upon the performance of the
duties and functions of the office, furnishing this Office and the Civil Service
Commission with copies of your oath of office.
(signed)
Gloria Arroyo

Issue

The petition questions the constitutionality of President Arroyos


appointment of respondents as acting secretaries without the consent of the
Commission on Appointments while Congress is in session.
The Courts Ruling

The petition has no merit.

Preliminary Matters
On the Mootness of the Petition

The Solicitor General argues that the petition is moot because President Arroyo had
extended to respondents ad interim appointments on 23 September 2004
immediately after the recess of Congress.

As a rule, the writ of prohibition will not lie to enjoin acts already done.
[4]

However, as an exception to the rule on mootness, courts will decide a question

otherwise moot if it is capable of repetition yet evading review.[5]


In the present case, the mootness of the petition does not bar its resolution. The
question of the constitutionality of the Presidents appointment of department
secretaries in an acting capacity while Congress is in session will arise in every
such appointment.
On the Nature of the Power to Appoint

The power to appoint is essentially executive in nature, and the legislature may not
interfere with the exercise of this executive power except in those instances when
the Constitution expressly allows it to interfere.[6] Limitations on the executive
power to appoint are construed strictly against the legislature. [7] The scope of the
legislatures interference in the executives power to appoint is limited to the power
to prescribe the qualifications to an appointive office. Congress cannot appoint a
person to an office in the guise of prescribing qualifications to that office. Neither
may Congress impose on the President the duty to appoint any particular person to
an office.[8]
However, even if the Commission on Appointments is composed of members of
Congress, the exercise of its powers is executive and not legislative. The
Commission on Appointments does not legislate when it exercises its power to
give or withhold consent to presidential appointments. Thus:

xxx The Commission on Appointments is a creature of the Constitution. Although


its membership is confined to members of Congress, 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 Commissioner are purely executive in
nature. xxx[9]

On Petitioners Standing

The Solicitor General states that the present petition is a quo warranto proceeding
because, with the exception of Secretary Ermita, petitioners effectively seek to oust
respondents for unlawfully exercising the powers of department secretaries. The
Solicitor General further states that petitioners may not claim standing as Senators
because no power of the Commission on Appointments has been infringed upon or
violated by the President. xxx If at all, the Commission on Appointments as a body
(rather than individual members of the Congress) may possess standing in this
case.[10]
Petitioners,

on

the

other

hand,

state

that

the

Court

can

exercise

its certiorari jurisdiction over unconstitutional acts of the President. [11] Petitioners
further contend that they possess standing because President Arroyos appointment
of department secretaries in an acting capacity while Congress is in session impairs
the powers of Congress. Petitioners cite Sanlakas v. Executive Secretary[12] as
basis, thus:

To the extent that the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate in the exercise
of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a
member of Congress. In such a case, any member of Congress can have a resort to
the courts.

Considering the independence of the Commission on Appointments from


Congress, it is error for petitioners to claim standing in the present case as
members of Congress. President Arroyos issuance of acting appointments while
Congress is in session impairs no power of Congress. Among the petitioners, only
the following are members of the Commission on Appointments of the
13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as
Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada,
and Senator Osmea as members.
Thus, on the impairment of the prerogatives of members of the Commission
on Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and
Osmea have standing in the present petition. This is in contrast to Senators
Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their
perceived prerogatives as members of Congress, possess no standing in the present
petition.
The Constitutionality of President Arroyos Issuance
of Appointments to Respondents as Acting Secretaries

Petitioners contend that President Arroyo should not have appointed


respondents as acting secretaries because in case of a vacancy in the Office of a
Secretary, it is only an Undersecretary who can be designated as Acting Secretary.
[13]

Petitioners base their argument on Section 10, Chapter 2, Book IV of Executive

Order No. 292 (EO 292),[14] which enumerates the powers and duties of the
undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary
shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the latters absence
or inability to discharge his duties for any cause or in case of vacancy of the said
office, unless otherwise provided by law. Where there are more than one
Undersecretary, the Secretary shall allocate the foregoing powers and duties
among them. The President shall likewise make the temporary designation of
Acting Secretary from among them; and
xxx

Petitioners further assert that while Congress is in session, there can be no


appointments, whether regular or acting, to a vacant position of an office needing
confirmation by the Commission on Appointments, without first having obtained
its consent.[15]
In sharp contrast, respondents maintain that the President can issue appointments
in an acting capacity to department secretaries without the consent of the

Commission on Appointments even while Congress is in session. Respondents


point to Section 16, Article VII of the 1987 Constitution. Section 16 reads:
SEC. 16. 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 of the armed forces
from the rank of colonel or naval captain, 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.
The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such appointments
shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.

Respondents also rely on EO 292, which devotes a chapter to the Presidents


power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292
read:
SEC. 16. Power of Appointment. The President shall exercise the power
to appoint such officials as provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. (1) The 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, appointment to which is vested in him by law, when: (a) the officer
regularly appointed to the office is unable to perform his duties by reason of
illness, absence or any other cause; or (b) there exists a vacancy[.]
(2) The person designated shall receive the compensation attached to the
position, unless he is already in the government service in which case he shall
receive only such additional compensation as, with his existing salary, shall not
exceed the salary authorized by law for the position filled. The compensation
hereby authorized shall be paid out of the funds appropriated for the office or
agency concerned.

(3) In no case shall a temporary designation exceed one (1)


year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically opposed lines of thought.


Petitioners assert that the President cannot issue appointments in an acting capacity
to department secretaries while Congress is in session because the law does not
give the President such power. In contrast, respondents insist that the President can
issue such appointments because no law prohibits such appointments.
The essence of an appointment in an acting capacity is its temporary nature. It is a
stop-gap measure intended to fill an office for a limited time until the appointment
of a permanent occupant to the office.[16] In case of vacancy in an office occupied
by an alter ego of the President, such as the office of a department secretary, the
President must necessarily appoint an alter ego of her choice as acting secretary
before the permanent appointee of her choice could assume office.
Congress, through a law, cannot impose on the President the obligation to
appoint automatically the undersecretary as her temporary alter ego. 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.
The office of a department secretary may become vacant while Congress is
in session. Since a department secretary is the alter ego of the President, the acting

appointee to the office must necessarily have the Presidents confidence. Thus, by
the very nature of the office of a department secretary, the President must appoint
in an acting capacity a person of her choice even while Congress is in session. That
person may or may not be the permanent appointee, but practical reasons may
make it expedient that the acting appointee will also be the permanent appointee.
The law expressly allows the President to make such acting appointment.
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.
Thus, the President may even appoint in an acting capacity a person not yet in the
government service, as long as the President deems that person competent.
Petitioners assert that Section 17 does not apply to appointments vested in the
President by the Constitution, because it only applies to appointments vested in the
President by law. Petitioners forget that Congress is not the only source of law.
Law refers to the Constitution, statutes or acts of Congress, municipal ordinances,
implementing rules issued pursuant to law, and judicial decisions.[17]
Finally, petitioners claim that the issuance of appointments in an acting capacity is
susceptible to abuse. Petitioners fail to consider that acting appointments cannot
exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III
of EO 292. The law has incorporated this safeguard to prevent abuses, like the use

of acting appointments as a way to circumvent confirmation by the Commission on


Appointments.
In distinguishing ad interim appointments from appointments in an acting
capacity, a noted textbook writer on constitutional law has observed:
Ad-interim appointments must be distinguished from appointments in an
acting capacity. Both of them are effective upon acceptance. 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.[18]

However, we find no abuse in the present case. The absence of abuse is readily
apparent from President Arroyos issuance of ad interim appointments to
respondentsimmediately upon the recess of Congress, way before the lapse of one
year.
WHEREFORE,
prohibition.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:

we DISMISS the

present

petition

for certiorari and

HILARIO G. DAVIDE, JR.


Chief Justice

REYNATO S. PUNO
Associate Justice

ARTEMIO V. PANGANIBAN
Associate Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARESSANTIAGO
Associate Justice

ANGELINA SANDOVALGUTIERREZ
Associate Justice

MA. ALICIA AUSTRIAMARTINEZ


Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

ROMEO J. CALLEJO, SR.


Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CANCIO C. GARCIA
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court.
HILARIO G. DAVIDE, JR.
Chief Justice

[1]
[2]

[3]

Under Rule 65 of the Rules of Court.


Rollo, pp. 21-28.
Rollo, pp. 45-60.

[4]

Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Gil v. Benipayo,
G.R. No. 148179, 26 June 2001 (minute resolution).
[5]
Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Chief Supt.
Acop v. Secretary Guingona, Jr., 433 Phil. 62 (2002); Viola v. Hon. Alunan III, 343 Phil. 184 (1997); Alunan III
v. Mirasol, 342 Phil. 467 (1997).
[6]

See JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY
768 (1996).
[7]
See Sarmiento III v. Mison, No. L-79974, 17 December 1987, 156 SCRA 549.
[8]
See Manalang v. Quitoriano, et al., 94 Phil. 903 (1954); Flores v. Drilon, G.R. No. 104732, 22 June 1993, 223
SCRA 568.
[9]
Cunanan v. Tan, Jr., G.R. No. L-19721, 10 May 1962, 5 SCRA 1. But see Justice Concepcions Concurring
Opinion in Guevara v. Inocentes, 123 Phil. 201, 211 (1966).

[10]

Rollo, p. 38.
Ibid., p. 65.
[12]
G.R. No. 159085, 3 February 2004, 421 SCRA 656 citing Philippine Constitution Association v. Enriquez, G.R.
No. 113105, 19 August 1994, 235 SCRA 506.
[13]
Rollo, p. 14.
[11]

[14]
[15]

Also known as the Administrative Code of 1987.


Rollo, p. 12.

[16]

See Marohombsar v. Alonto, Jr., G.R. No. 93711, 25 February 1991, 194 SCRA 390.
Article 8, Civil Code. See National Amnesty Commission v. Commission on Audit, G.R. No. 156982, 8
September 2004, 437 SCRA 655.
[18]
JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 772
(1996).
[17]

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND
GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET,
respondents, COMMISSION ON APPOINTMENTS, intervenor.

PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for
prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the
Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from
performing the functions of the Office of Commissioner of the Bureau of Customs and the
respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting
disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not
having been confirmed by the Commission on Appointments. The respondents, on the other hand,
maintain the constitutionality of respondent Mison's appointment without the confirmation of the
Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public service, the
Court resolved to give due course to the petition and decide, setting aside the finer procedural
questions of whether prohibition is the proper remedy to test respondent Mison's right to the Office of
Commissioner of the Bureau of Customs and of whether the petitioners have a standing to bring this
suit.
By the same token, and for the same purpose, the Court allowed the Commission on Appointments
to intervene and file a petition in intervention. Comment was required of respondents on said

petition. The comment was filed, followed by intervenor's reply thereto. The parties were also heard
in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between two (2)
great departments of government, the Executive and Legislative Departments. It also occurs early in
the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the
Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief
Justice) Jose Abad Santos stated inGold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the intent
of the framers of the organic law and of the people adopting it. The intention to which
force is to be given is that which is embodied and expressed in the constitutional
provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with how the
executive or the legislative department may want them construed, but in accordance with what they
say and provide.
Section 16, Article VII of the 1987 Constitution 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 of the armed forces from the rank of colonel
or naval captain, 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 the
departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four
(4) groups of officers whom the President shall appoint. These four (4) groups, to which we will
hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose appointments are not otherwise
provided for by law; 3
Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the
President alone.
The first group of officers is clearly appointed with the consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the
Commission on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention. Should they be
appointed by the President with or without the consent (confirmation) of the Commission on
Appointments? By following the accepted rule in constitutional and statutory construction that an
express enumeration of subjects excludes others not enumerated, it would follow that only those
appointments to positions expressly stated in the first group require the consent (confirmation) of the
Commission on Appointments. But we need not rely solely on this basic rule of constitutional
construction. We can refer to historical background as well as to the records of the 1986
Constitutional Commission to determine, with more accuracy, if not precision, the intention of the
framers of the 1987 Constitution and the people adopting it, on whether the appointments by the
President, under the second, third and fourth groups, require the consent (confirmation) of the
Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad
Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional provision must
be presumed to have been framed and adopted in the light and understanding of
prior and existing laws and with reference to them. "Courts are bound to presume
that the people adopting a constitution are familiar with the previous and existing
laws upon the subjects to which its provisions relate, and upon which they express
their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W.,
769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive 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
appointments 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.
(4) The President shall havethe power to make appointments during the recess of
the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall appoint
ambassadors, other public ministers and consuls ...

Upon the other hand, the 1973 Constitution provides thatSection 10. The President shall appoint the heads of bureaus and offices, the officers
of the Armed Forces of the Philippines from the rank of Brigadier General or
Commodore, and all other officers of The government whose appointments are not
herein otherwise provided for, and those whom he may be authorized by law to
appoint. However, the Batasang Pambansa may by law vest in the Prime Minister,
members of the Cabinet, the Executive Committee, Courts, Heads of Agencies,
Commissions, and Boards the power to appoint inferior officers in their respective
offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. It is now a sad part of our political history that
the power of confirmation by the Commission on Appointments, under the 1935 Constitution,
transformed that commission, many times, into a venue of "horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was
molded and remolded by successive amendments, placed the absolute power of appointment in the
President with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973
Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the
people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the
Commission on Appointments for the first group of appointments and leaving to the President,
without such confirmation, the appointment of other officers, i.e., those in the second and third
groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of
Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional
Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a Commission on
Appointment, shall appoint the heads of the executive departments and bureaus,
ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain and 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
inferior officers in the President alone, in the courts, or in the heads of
departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When
the frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a
feeling was manifestly expressed to make the power of the Commission on Appointments over
presidential appointments more limited than that held by the Commission in the 1935 Constitution.
ThusMr. Rama: ... May I ask that Commissioner Monsod be recognized
The President: We will call Commissioner Davide later.

Mr. Monsod: With the Chair's indulgence, I just want to take a few
minutes of our time to lay the basis for some of the amendments that
I would like to propose to the Committee this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on
Appointments be limited to the department heads, ambassadors, generals and so on
but not to the levels of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes proposed
and approved by the Commission. These were (1) the exclusion of the appointments of heads of
bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the
exclusion of appointments made under the second sentence 9 of the section from the same
requirement. The records of the deliberations of the Constitutional Commission show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on page 7,
Section 16, line 26 which is to delete the words "and bureaus," and
on line 28 of the same page, to change the phrase 'colonel or naval
captain to MAJOR GENERAL OR REAR ADMIRAL. This last
amendment which is co-authored by Commissioner de Castro is to
put a period (.) after the word ADMIRAL, and on line 29 of the same
page, start a new sentence with: HE SHALL ALSO APPOINT, et
cetera.
MR. REGALADO: May we have the amendments one by one. The
first proposed amendment is to delete the words "and bureaus" on
line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what
would be the justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in the
executive department, and to require further confirmation of
presidential appointment of heads of bureaus would subject them to
political influence.
MR. REGALADO: The Commissioner's proposed amendment by
deletion also includes regional directors as distinguished from merely
staff directors, because the regional directors have quite a plenitude

of powers within the regions as distinguished from staff directors who


only stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervisiopn
of the staff bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz?
The Commissioner proposed an amendment to delete 'and bureaus
on Section 16. Who will then appoint the bureau directors if it is not
the President?
MR. FOZ: It is still the President who will appoint them but their
appointment shall no longer be subject to confirmation by the
Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer
of Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the
Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that this
matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We will
first vote on the deletion of the phrase 'and bureaus on line 26, such
that appointments of bureau directors no longer need confirmation by
the Commission on Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the
consent of a Commission on Appointments, shall appoint the heads of the executive
departments, ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase 'and
bureaus' on page 7, line 26? (Silence) The Chair hears none; the
amendments is approved.
xxx xxx xxx

MR. ROMULO: Madam President.


THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed amendment
on page 7, line 28. 1 propose to put a period (.) after 'captain' and on
line 29, delete 'and all' and substitute it with HE SHALL ALSO
APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts 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.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to his
amendment, so that after "captain" we insert the following words:
AND OTHER OFFICERS WHOSE APPOINTMENTS 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 President, as a
matter of fact like those of the different constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in Section 16
is not an exclusive list of those appointments which constitutionally
require confirmation of the Commission on Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the words
I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed
amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN
THIS CONSTITUTION.

FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE


APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION"?
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 excludes those
officers which the Constitution does not require confirmation 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 amendment of
Commissioners Foz and Davide.
xxx xxx xxx
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 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of officers can
be made by the President without the consent (confirmation) of the Commission on
Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second
sentence of Sec. 16, Article VII readingHe (the President) 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 . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in like manner" appoint
the officers mentioned in said second sentence. In other words, the President shall appoint the
officers mentioned in said second sentence in the same manner as he appoints officers mentioned in
the first sentence, that is, by nomination and with the consent (confirmation) of the Commission on
Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of
the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in

addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which
meanings could, on the contrary, stress that the word "also" in said second sentence means that the
President, in addition to nominating and, with the consent of the Commission on Appointments,
appointing the officers enumerated in the first sentence, can appoint (without such consent
(confirmation) the officers mentioned in the second sentenceRather than limit the area of consideration to the possible meanings of the word "also" as used in the
context of said second sentence, the Court has chosen to derive significance from the fact that the
first sentence speaks of nomination by the President and appointment by the President with the
consent of the Commission on Appointments, whereas, the second sentence speaks only of
appointment by the President. And, this use of different language in two (2) sentences proximate to
each other underscores a difference in message conveyed and perceptions established, in line with
Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so,
because the recorded proceedings of the 1986 Constitutional Commission clearly and expressly
justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are
officers whose appointments require no confirmation of the Commission on Appointments, even if
such officers may be higher in rank, compared to some officers whose appointments have to be
confirmed by the Commission on Appointments under the first sentence of the same Sec. 16, Art.
VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the
Commission on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the
Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and
deliberate judgment of the framers of the 1987 Constitution that, except as to those officers whose
appointments require the consent of the Commission on Appointments by express mandate of the
first sentence in Sec. 16, Art. VII, appointments of other officers are left to the President without need
of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to
presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they
were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on
or qualifications of such power should be strictly construed against them. Such limitations or
qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of
Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein
enumerated require the consent of the Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission on
Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which
reads:
The Congress may, by law, vest the appointment of other officers lower in rank in the
Presidentalone, in the courts, or in the heads of departments, agencies,
commissions, or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the
President alone, this implies that, in the absence of such a law, lower-ranked officers have to be
appointed by the President subject to confirmation by the Commission on Appointments; and, if this

is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed by the
President, subject also to confirmation by the Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII,
abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law vest their
appointment in the President, in the courts, or in the heads of the various departments, agencies,
commissions, or boards in the government. No reason however is submitted for the use of the word
"alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a careful study
of the deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the
word "President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip
or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the following provision
appears at the end of par. 3, section 1 0, Article VII thereof
...; 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. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision which makes
practically all presidential appointments subject to confirmation by the Commission on Appointments,
thus3. The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive 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
appointments are not herein provided for, and those whom he may be authorized by
law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to
confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an
exception to such rule, to provide that Congress may, however, by law vest the appointment of
inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the
President alone, in the courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its
framers was to exclude presidential appointments from confirmation by the Commission on
Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16,
Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the
word "alone" after the word "President" in providing that Congress may by law vest the appointment
of lower-ranked officers in the President alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the President) may be authorized by law to appoint
is already vested in the President, without need of confirmation by the Commission on
Appointments, in the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of
lower-ranked officers, the Congress may by law vest their appointment in the President, in the
courts, or in the heads of various departments of the government. In short, the word "alone" in the
third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of

par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light of the
second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and
positive intent of the framers of the 1987 Constitution that presidential appointments, except those
mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the
Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of
Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of
appointments where the consent of the Commission on Appointments is required. As a matter of
fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those
officers whose appointments need the consent of the Commission on Appointments, the 1987
Constitution on the other hand, deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau
of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff
and Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22
June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and
one assistant chief, to be known respectively as the Commissioner (hereinafter
known as the 'Commissioner') and Assistant Commissioner of Customs, who shall
each receive an annual compensation in accordance with the rates prescribed by
existing laws. The Assistant Commissioner of Customs shall be appointed by the
proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No.
34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now
reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall
have one chief and one assistant chief, to be known respectively as the
Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of
Customs, who shall each receive an annual compensation in accordance with the
rates prescribed by existing law. The Commissioner and the Deputy Commissioner
of Customs shall be appointed by the President of the Philippines (Emphasis
supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the
1935 Constitution, under which the President may nominate and, with the consent of the
Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of
Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be
read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the
Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment
he is authorizedby law to make, such appointment, however, no longer needs the confirmation of the
Commission on Appointments.

Consequently, we rule that the President of the Philippines acted within her constitutional authority
and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs,
without submitting his nomination to the Commission on Appointments for confirmation. He is thus
entitled to exercise the full authority and functions of the office and to receive all the salaries and
emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED.
Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, C.J., concurring:


The Court has deemed it necessary and proper, in consonance with its constitutional duty, to
adjudicate promptly the issue at bar and to rule that the direct appointment of respondent Salvador
Mison as Commissioner of the Bureau of Customs (without need of submitting a prior nomination to
the Commission on Appointments and securing its confirmation) is valid and in accordance with the
President's constitutional authority to so appoint officers of the Government as defined in Article VII,
section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public
service demand that any doubts over the validity of such appointments be resolved expeditiously in
the test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation
of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For
the Confirmation By the Commission on Appointments of All Nominations and Appointments Made
by the President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the
House of Representatives. " This omission has been deliberate. The Court has resolved the case at
bar on the basis of the issues joined by the parties. The contingency of approval of the bill
mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the
direct appointment of respondent Mison and other appointees similarly situated as in G.R. No.
80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with
constitutional questions in the abstract and without the same being properly raised before it in a
justiciable case and after thorough discussion of the various points of view that would enable it to
render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any
discussion of the reported bill and its validity or invalidity is premature and irrelevant and outside the
scope of the issues resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply
wish to add my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
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 of the armed forces from the rank of colonel
or naval captain, 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 the departments, agencies,
commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it is clear that the President
"nominates" and with the consent of the Commission on Appointments "appoints" the officials
enumerated. The second sentence, however, significantly uses only the term "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. Deliberately eliminated was any reference
to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second
sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also
is the fact that the term "appoint" used in said sentence was not meant to include the three distinct
acts in the appointing process, namely, nomination, appointment, and commission. For if that were
the intent, the same terminologies in the first sentence could have been easily employed.
There should be no question either that the participation of the Commission on Appointments in the
appointment process has been deliberately decreased in the 1987 Constitution compared to that in
the 1935 Constitution, which required that all presidential appointments be with the consent of the
Commission on Appointments.
The interpretation given by the majority may, indeed, lead to some incongruous situations as
stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future.
The task of constitutional construction is to ascertain the intent of the framers of the Constitution and
thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No.
21064, February 18, 1970, 31 SCRA 413). And the primary source from which to ascertain
constitutional intent is the language of the Constitution itself.

SARMIENTO, J., concurring:


I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to
prior Congressional confirmation, thus:
Sec. 16. 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 of the armed forces from the rank of colonel
or naval captain, 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.
The President shall have the power to make appointments during recess of the
Congress, whether voluntary or compulsory, but such appointment shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. 1
By its plain language, the Constitution has intended that only those grouped under the first sentence
are required to undergo a consenting process. This is a significant departure from the procedure set
forth in the 1935 Charter:
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from the
rank of captain to commander, and all other officers of the Government whose
appointments 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. 2
under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no
extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to
require all Presidential appointments clearance from the Commission on Appointments, they could have
simply reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments that the President may
make: (1) appointments of heads of executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of colonel or naval captain, and those of
other officers whose appointments are vested in him under the Constitution, including the regular
members of the Judicial and Bar Council, 5 the Chairman and Commissioners of the Civil Service
Commission, 6 the Chairman and Commissioners of the Commission on Elections, 7 and the Chairman
and Commissioners of the Commission on Audit; 8 (2) those officers whose appointments are not
otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and (4) officers
lower in rank whose appointments the Congress may vest in the President alone.

But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written
a "rather confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a
certain extent, to the appointing clause itself, in the sense that it leaves us for instance, with the
incongruous situation where a consul's appointment needs confirmation whereas that of Undersecretary
of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge.
That is a question addressed to the electorate, and who, despite those "eccentricities," have
stamped their approval on that Charter. "The Court," avers the majority, "will thus construe the
applicable constitutional provisions, not in accordance with how the executive or the legislative
department may want them construed, but in accordance with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power,
much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment
to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v. Philippine Islands 13 on the other hand,
underscored the fact that while the legislature may create a public office, it cannot name the official to discharge the functions appurtenant
thereto. And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications, which would unduly narrow the
President's choice. In that event, it is as if it is the legislature itself conferring the appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains
his supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of
the appointing power.
It is the essence of a republican form of government, like ours, that "[e]ach department of the
government has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican
systems, no power is absolutely separate from the other. For republicanism operates on a process of checks and balances as well, not only
to guard against excesses by one branch, but more importantly, "to secure coordination in the workings of the various departments of the
government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against abuse of the appointing authority, but not
as a means with which to hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson as the majority notes, in our
history under the regime of the 1935 Constitution.

The system of checks and balances is not peculiar to the provision on appointments. The prohibition,
for instance, against the enactment of a bill of attainder operates as a bar against legislative
encroachment upon both judicial and executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both
ways. In a very real sense, the power of appointment constitutes a check against legislative
authority. In Springer v. Philippine Islands, 17 we are told that "Congress may not control the law enforcement process by
retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one authority, because "the appointments
clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative authority in the interest
of avoiding an undue concentration of power in Congress. " 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department of the
Government may discharge that function, least of all Congress. Accordingly, a statute conferring upon a
commission the responsibility of administering that very legislation and whose members have been
determined therein, has been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is
the concern of the President, and in going about this business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the

power of removal . . . [is] incident to the power of appointment, 23 although this has since been tempered
in a subsequent case, 24 where it was held that the President may remove only "purely executive
officers, 25 that is, officers holding office at his pleasure. InIngles v. Mutuc, 26 this Court held that the
President may remove incumbents of offices confidential in nature, but we likewise made clear that in
such a case, the incumbent is not "removed" within the meaning of civil service laws, but that his term
merely expires.

It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987
Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all
appointments submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the
appointments preferred before it within the prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are
blurred by the predominance of checks and counterchecks, yet amid such a rubble of competing
powers emerges a structure whose parts are at times jealous of each other, but which are ultimately
necessary in assuring a dynamic, but stable, society. As Mr. Justice Holmes had so elegantly
articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. ... When we come to the
fundamental distinctions it is still more obvious that they must be received with a
certain latitude or our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative and
executive action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and counterpoises, which
Newton might readily have recognized as suggestive of the mechanism of the
heavens," (W. Wilson, Constitutional Government in the United States 56 (1908)] can
represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192: "The
Constitution cannot be regarded as a mere legal document, to be read as a will or a
contract would be. It must, of the necessity of the case, be a vehicle of life.") The
great difficulty of any theory less rich, Woodrow Wilson once warned, "is that
government is not a machine, but a living thing. It falls, not under the theory of the

universe, but under the theory of organic life. It is accountable to Darwin, not to
Newton. It is . . . shaped to its functions by the sheer pressure of life. No living thing
can have its organs offset against each other as checks, and five." (Id. at 56.) Yet
because no complex society can have its centers of power not "offset against each
other as checks," and resist tyranny, the Model of Separated and Divided Powers
offers continuing testimony to the undying dilemmas of progress and justice. 29
xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately
denied the legislature (the National Assembly under the 1971 draft Constitution) the power to check
executive appointments, and hence, granted the President absolute appointing power. 30 As a
delegate to, and Vice-President of, the ill-fated 1971 Constitutional Convention, and more so as the
presiding officer of most of its plenary session, I am aware that the Convention did not provide for a
commission on appointments on the theory that the Prime Minister, the head of the Government and the
sole appointing power, was himself a member of parliament. For this reason, there was no necessity for a
separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the
assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by
the Prime Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately,
supervening events forestalled our parliamentary experiment, and beginning with the 1976 amendments
and some 140 or so amendments thereafter, we had reverted to the presidential form, 32 without
provisions for a commission on appointments.
In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the
present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere
safeguard against abuse with respect to those appointments. It does not accord Congress any more
than the power to check, but not to deny, the Chief Executive's appointing power or to supplant his
appointees with its own. It is but an exception to the rule. In limiting the Commission's scope of
authority, compared to that under the 1935 Constitution, I believe that the 1987 Constitution has
simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the
land, should never have any of its provisions interpreted in a manner that results in absurd or
irrational consequences.
The Commission on Appointments is an important constitutional body which helps give fuller
expression to the principles inherent in our presidential system of government. Its functions cannot
be made innocuous or unreasonably diminished to the confirmation of a limited number of
appointees. In the same manner that the President shares in the enactment of laws which govern
the nation, the legislature, through its Commission on Appointments, gives assurance that only those
who can pass the scrutiny of both the President and Congress will help run the country as officers
holding high appointive positions. The third sentence of the first paragraph " ... 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." specifies only "officers lower
in rank" as those who may, by law, be appointed by the President alone. If as expounded in the
majority opinion, only the limited number of officers in the first sentence of Section 16 require
confirmation, the clear intent of the third sentence is lost. In fact both the second and third sentences

become meaningless or superfluous. Superfluity is not to be read into such an important part of the
Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read
together. In providing for the appointment of members of the Supreme Court and judges of lower
courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice
President as a member of cabinet (Section 3, Article VII) and, of course, those who by law the
President alone may appoint, the Constitution clearly provides no need for confirmation. This can
only mean that all other appointments need confirmation. Where there is no need for confirmation or
where there is an alternative process to confirmation, the Constitution expressly so declares. Without
such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the
government it set up was supposed to be a parliamentary one. The Prime Minister, as head of
government, was constantly accountable to the legislature. In our presidential system, the
interpretation which Justice Cruz and myself espouse, is more democratic and more in keeping with
the system of government organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is
required only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the
executive departments; (2) ambassadors, other public ministers and consuls; (3) officers of the
armed forces from the rank of colonel or naval captain; and (4) other officers whose appointments
are vested in the President in the Constitution. No confirmation is required under the second
sentence for (1) all other officers whose appointments are not otherwise provided for by law, and (2)
those whom the President may be authorized by law to appoint. Neither is confirmation required by
the third sentence for those other officers lower in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his
department, does not have to be confirmed by the Commission on Appointments, but the ordinary
consul, who is under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank
than the Chairman of the Commission on Human Rights, which was created by the Constitution; yet
the former is subject to confirmation but the latter is not because he does not come under the first
sentence. The Special Prosecutor, whose appointment is not vested by the Constitution in the
President, is not subject to confirmation under the first sentence, and neither are the Governor of the
Central Bank and the members of the Monetary Board because they fall under the second sentence
as interpreted by the majority opinion. Yet in the case of the multi-sectoral members of the regional
consultative commission, whose appointment is vested by the Constitution in the President under
Article X, Section 18, their confirmation is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they would lead to the absurd
consequences we should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first sentence
of Section 16, but that is not the provision we ought to interpret. It is the second sentence we must

understand for a proper resolution of the issues now before us. Significantly, although there was a
long discussion of the first sentence in the Constitutional Commission, there is none cited on the
second sentence either in the Solicitor-General's comment or in the majority opinion. We can
therefore only speculate on the correct interpretation of this provision in the light of the first and third
sentences of Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and holds
that the two sets of officers specified therein may be appointed by the President without the
concurrence of the Commission on Appointments. This interpretation is pregnant with mischievous if
not also ridiculous results that presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the
majority opinion that the enumeration in the first sentence of the officers subject to confirmation is
exclusive on the basis ofexpressio unius est exclusio alterius. If that be so, the first sentence would
have been sufficient by itself to convey the Idea that all other appointees of the President would not
need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it
was still felt necessary to provide in the third sentence that the appointment of the other officers
lower in rank will also not need confirmation as long as their appointment is vested by law in the
President alone. The third sentence would appear to be superfluous, too, again in view of the first
sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the
appointment of those other officers lower in rank mentioned in the third sentence? Conformably to
the language thereof, these lower officers will need the confirmation of the Commission on
Appointments while, by contrast, the higher officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank
than the bureau director, will have to be confirmed if the Congress does not vest their appointment in
the President alone under the third sentence. On the other hand, their superior, the bureau director
himself, will not need to be confirmed because, according to the majority opinion, he falls not under
the first sentence but the second. This is carefulness in reverse, like checking the bridesmaids but
forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict
the powers of the Presidency and so prevent the recurrence of another dictatorship. Among the
many measures taken was the restoration of the Commission on Appointments to check the
appointing power which had been much abused by President Marcos. We are now told that even as
this body was revived to limit appointments, the scope of its original authority has itself been limited
in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation of the Idea expressed in the first
sentence and simply mentions the other officers appointed by the President who are also subject to
confirmation. The second sentence is the later expression of the will of the framers and so must be
interpreted as complementing the rule embodied in the first sentence or, if necessary, reversing the
original intention to exempt bureau directors from confirmation. I repeat that there were no debates
on this matter as far as I know, which simply means that my humble conjecture on the meaning of
Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely on the same

records. At any rate, this view is more consistent with the general purpose of Article VII, which, to
repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record of the
Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on
page 7, line 28, 1 propose to put a period (.) after 'captain' and on line
29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT
ANY.
Mr. Regalado: Madam President, the Committee accepts 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.
However, the records do not show what particular part of Section 16 the committee chairman was
referring to, and a reading in its entirety of this particular debate will suggest that the body was
considering the first sentence of the said section, which I reiterate is not the controversial provision.
In any case, although the excerpt shows that the proposed amendment of Commissioner Foz was
accepted by the committee, it is not reflected, curiously enough, in the final version of Section 16 as
a perusal thereof will readily reveal. Whether it was deleted later in the session or reworded by the
style committee or otherwise replaced for whatever reason will need another surmise on this rather
confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and are
at best persuasive only and not necessarily conclusive. Interestingly, some quarters have observed
that the Congress is not prevented from adding to the list of officers subject to confirmation by the
Commission on Appointments and cite the debates on this matter in support of this supposition. It is
true enough that there was such a consensus, but it is equally true that this thinking is not at all
expressed, or even only implied, in the language of Section 16 of Article VII. Which should prevail
then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question either
that it is not absolute or unlimited. The rule re- established by the new Constitution is that the power
requires confirmation by the Commission on Appointments as a restraint on presidential excesses, in
line with the system of checks and balances. I submit it is the exception to this rule, and not the rule,
that should be strictly construed.
In my view, the only officers appointed by the President who are not subject to confirmation by the
Commission on Appointments are (1) the members of the judiciary and the Ombudsman and his
deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in rank," but only when their appointment is
vested by law in the President alone. It is clear that this enumeration does not include the
respondent Commissioner of Customs who, while not covered by the first sentence of Section 16,
comes under the second sentence thereof as I would interpret it and so is also subject to
confirmation.
I vote to grant the petition.

Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance with its constitutional duty, to
adjudicate promptly the issue at bar and to rule that the direct appointment of respondent Salvador
Mison as Commissioner of the Bureau of Customs (without need of submitting a prior nomination to
the Commission on Appointments and securing its confirmation) is valid and in accordance with the
President's constitutional authority to so appoint officers of the Government as defined in Article VII,
section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public
service demand that any doubts over the validity of such appointments be resolved expeditiously in
the test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation
of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For
the Confirmation By the Commission on Appointments of All Nominations and Appointments Made
by the President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the
House of Representatives. " This omission has been deliberate. The Court has resolved the case at
bar on the basis of the issues joined by the parties. The contingency of approval of the bill
mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the
direct appointment of respondent Mison and other appointees similarly situated as in G.R. No.
80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with
constitutional questions in the abstract and without the same being properly raised before it in a
justiciable case and after thorough discussion of the various points of view that would enable it to
render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any
discussion of the reported bill and its validity or invalidity is premature and irrelevant and outside the
scope of the issues resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply
wish to add my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
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 of the armed forces from the rank of colonel
or naval captain, 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 the departments, agencies,
commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it is clear that the President
"nominates" and with the consent of the Commission on Appointments "appoints" the officials
enumerated. The second sentence, however, significantly uses only the term "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. Deliberately eliminated was any reference
to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second
sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also
is the fact that the term "appoint" used in said sentence was not meant to include the three distinct
acts in the appointing process, namely, nomination, appointment, and commission. For if that were
the intent, the same terminologies in the first sentence could have been easily employed.
There should be no question either that the participation of the Commission on Appointments in the
appointment process has been deliberately decreased in the 1987 Constitution compared to that in
the 1935 Constitution, which required that all presidential appointments be with the consent of the
Commission on Appointments.
The interpretation given by the majority may, indeed, lead to some incongruous situations as
stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future.
The task of constitutional construction is to ascertain the intent of the framers of the Constitution and
thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No.
21064, February 18, 1970, 31 SCRA 413). And the primary source from which to ascertain
constitutional intent is the language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to
prior Congressional confirmation, thus:
Sec. 16. 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 of the armed forces from the rank of colonel
or naval captain, 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.

The President shall have the power to make appointments during recess of the
Congress, whether voluntary or compulsory, but such appointment shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. 1
By its plain language, the Constitution has intended that only those grouped under the first sentence
are required to undergo a consenting process. This is a significant departure from the procedure set
forth in the 1935 Charter:
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from the
rank of captain to commander, and all other officers of the Government whose
appointments 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. 2
under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no
extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to
require all Presidential appointments clearance from the Commission on Appointments, they could have
simply reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments that the President may
make: (1) appointments of heads of executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of colonel or naval captain, and those of
other officers whose appointments are vested in him under the Constitution, including the regular
members of the Judicial and Bar Council, 5 the Chairman and Commissioners of the Civil Service
Commission, 6 the Chairman and Commissioners of the Commission on Elections, 7 and the Chairman
and Commissioners of the Commission on Audit; 8 (2) those officers whose appointments are not
otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and (4) officers
lower in rank whose appointments the Congress may vest in the President alone.
But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written
a "rather confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a
certain extent, to the appointing clause itself, in the sense that it leaves us for instance, with the
incongruous situation where a consul's appointment needs confirmation whereas that of Undersecretary
of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge.
That is a question addressed to the electorate, and who, despite those "eccentricities," have
stamped their approval on that Charter. "The Court," avers the majority, "will thus construe the
applicable constitutional provisions, not in accordance with how the executive or the legislative
department may want them construed, but in accordance with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power,
much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment
to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v. Philippine Islands 13 on the other hand,

underscored the fact that while the legislature may create a public office, it cannot name the official to discharge the functions appurtenant
thereto. And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications, which would unduly narrow the
President's choice. In that event, it is as if it is the legislature itself conferring the appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains
his supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of
the appointing power.
It is the essence of a republican form of government, like ours, that "[e]ach department of the
government has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican
systems, no power is absolutely separate from the other. For republicanism operates on a process of checks and balances as well, not only
to guard against excesses by one branch, but more importantly, "to secure coordination in the workings of the various departments of the
government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against abuse of the appointing authority, but not
as a means with which to hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson as the majority notes, in our
history under the regime of the 1935 Constitution.

The system of checks and balances is not peculiar to the provision on appointments. The prohibition,
for instance, against the enactment of a bill of attainder operates as a bar against legislative
encroachment upon both judicial and executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both
ways. In a very real sense, the power of appointment constitutes a check against legislative
authority. In Springer v. Philippine Islands, 17 we are told that "Congress may not control the law enforcement process by
retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one authority, because "the appointments
clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative authority in the interest
of avoiding an undue concentration of power in Congress. " 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department of the
Government may discharge that function, least of all Congress. Accordingly, a statute conferring upon a
commission the responsibility of administering that very legislation and whose members have been
determined therein, has been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is
the concern of the President, and in going about this business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the
power of removal . . . [is] incident to the power of appointment, 23 although this has since been tempered
in a subsequent case, 24 where it was held that the President may remove only "purely executive
officers, 25 that is, officers holding office at his pleasure. InIngles v. Mutuc, 26 this Court held that the
President may remove incumbents of offices confidential in nature, but we likewise made clear that in
such a case, the incumbent is not "removed" within the meaning of civil service laws, but that his term
merely expires.
It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987
Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all
appointments submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the
appointments preferred before it within the prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are
blurred by the predominance of checks and counterchecks, yet amid such a rubble of competing

powers emerges a structure whose parts are at times jealous of each other, but which are ultimately
necessary in assuring a dynamic, but stable, society. As Mr. Justice Holmes had so elegantly
articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. ... When we come to the
fundamental distinctions it is still more obvious that they must be received with a
certain latitude or our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative and
executive action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and counterpoises, which
Newton might readily have recognized as suggestive of the mechanism of the
heavens," (W. Wilson, Constitutional Government in the United States 56 (1908)] can
represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192: "The
Constitution cannot be regarded as a mere legal document, to be read as a will or a
contract would be. It must, of the necessity of the case, be a vehicle of life.") The
great difficulty of any theory less rich, Woodrow Wilson once warned, "is that
government is not a machine, but a living thing. It falls, not under the theory of the
universe, but under the theory of organic life. It is accountable to Darwin, not to
Newton. It is . . . shaped to its functions by the sheer pressure of life. No living thing
can have its organs offset against each other as checks, and five." (Id. at 56.) Yet
because no complex society can have its centers of power not "offset against each
other as checks," and resist tyranny, the Model of Separated and Divided Powers
offers continuing testimony to the undying dilemmas of progress and justice. 29
xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately
denied the legislature (the National Assembly under the 1971 draft Constitution) the power to check
executive appointments, and hence, granted the President absolute appointing power. 30 As a
delegate to, and Vice-President of, the ill-fated 1971 Constitutional Convention, and more so as the
presiding officer of most of its plenary session, I am aware that the Convention did not provide for a
commission on appointments on the theory that the Prime Minister, the head of the Government and the

sole appointing power, was himself a member of parliament. For this reason, there was no necessity for a
separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the
assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by
the Prime Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately,
supervening events forestalled our parliamentary experiment, and beginning with the 1976 amendments
and some 140 or so amendments thereafter, we had reverted to the presidential form, 32 without
provisions for a commission on appointments.

In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the
present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere
safeguard against abuse with respect to those appointments. It does not accord Congress any more
than the power to check, but not to deny, the Chief Executive's appointing power or to supplant his
appointees with its own. It is but an exception to the rule. In limiting the Commission's scope of
authority, compared to that under the 1935 Constitution, I believe that the 1987 Constitution has
simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the
land, should never have any of its provisions interpreted in a manner that results in absurd or
irrational consequences.
The Commission on Appointments is an important constitutional body which helps give fuller
expression to the principles inherent in our presidential system of government. Its functions cannot
be made innocuous or unreasonably diminished to the confirmation of a limited number of
appointees. In the same manner that the President shares in the enactment of laws which govern
the nation, the legislature, through its Commission on Appointments, gives assurance that only those
who can pass the scrutiny of both the President and Congress will help run the country as officers
holding high appointive positions. The third sentence of the first paragraph " ... 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." specifies only "officers lower
in rank" as those who may, by law, be appointed by the President alone. If as expounded in the
majority opinion, only the limited number of officers in the first sentence of Section 16 require
confirmation, the clear intent of the third sentence is lost. In fact both the second and third sentences
become meaningless or superfluous. Superfluity is not to be read into such an important part of the
Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read
together. In providing for the appointment of members of the Supreme Court and judges of lower
courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice
President as a member of cabinet (Section 3, Article VII) and, of course, those who by law the
President alone may appoint, the Constitution clearly provides no need for confirmation. This can
only mean that all other appointments need confirmation. Where there is no need for confirmation or
where there is an alternative process to confirmation, the Constitution expressly so declares. Without
such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the
government it set up was supposed to be a parliamentary one. The Prime Minister, as head of
government, was constantly accountable to the legislature. In our presidential system, the

interpretation which Justice Cruz and myself espouse, is more democratic and more in keeping with
the system of government organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is
required only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the
executive departments; (2) ambassadors, other public ministers and consuls; (3) officers of the
armed forces from the rank of colonel or naval captain; and (4) other officers whose appointments
are vested in the President in the Constitution. No confirmation is required under the second
sentence for (1) all other officers whose appointments are not otherwise provided for by law, and (2)
those whom the President may be authorized by law to appoint. Neither is confirmation required by
the third sentence for those other officers lower in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his
department, does not have to be confirmed by the Commission on Appointments, but the ordinary
consul, who is under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank
than the Chairman of the Commission on Human Rights, which was created by the Constitution; yet
the former is subject to confirmation but the latter is not because he does not come under the first
sentence. The Special Prosecutor, whose appointment is not vested by the Constitution in the
President, is not subject to confirmation under the first sentence, and neither are the Governor of the
Central Bank and the members of the Monetary Board because they fall under the second sentence
as interpreted by the majority opinion. Yet in the case of the multi-sectoral members of the regional
consultative commission, whose appointment is vested by the Constitution in the President under
Article X, Section 18, their confirmation is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they would lead to the absurd
consequences we should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first sentence
of Section 16, but that is not the provision we ought to interpret. It is the second sentence we must
understand for a proper resolution of the issues now before us. Significantly, although there was a
long discussion of the first sentence in the Constitutional Commission, there is none cited on the
second sentence either in the Solicitor-General's comment or in the majority opinion. We can
therefore only speculate on the correct interpretation of this provision in the light of the first and third
sentences of Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and holds
that the two sets of officers specified therein may be appointed by the President without the
concurrence of the Commission on Appointments. This interpretation is pregnant with mischievous if
not also ridiculous results that presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the
majority opinion that the enumeration in the first sentence of the officers subject to confirmation is
exclusive on the basis ofexpressio unius est exclusio alterius. If that be so, the first sentence would

have been sufficient by itself to convey the Idea that all other appointees of the President would not
need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it
was still felt necessary to provide in the third sentence that the appointment of the other officers
lower in rank will also not need confirmation as long as their appointment is vested by law in the
President alone. The third sentence would appear to be superfluous, too, again in view of the first
sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the
appointment of those other officers lower in rank mentioned in the third sentence? Conformably to
the language thereof, these lower officers will need the confirmation of the Commission on
Appointments while, by contrast, the higher officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank
than the bureau director, will have to be confirmed if the Congress does not vest their appointment in
the President alone under the third sentence. On the other hand, their superior, the bureau director
himself, will not need to be confirmed because, according to the majority opinion, he falls not under
the first sentence but the second. This is carefulness in reverse, like checking the bridesmaids but
forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict
the powers of the Presidency and so prevent the recurrence of another dictatorship. Among the
many measures taken was the restoration of the Commission on Appointments to check the
appointing power which had been much abused by President Marcos. We are now told that even as
this body was revived to limit appointments, the scope of its original authority has itself been limited
in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation of the Idea expressed in the first
sentence and simply mentions the other officers appointed by the President who are also subject to
confirmation. The second sentence is the later expression of the will of the framers and so must be
interpreted as complementing the rule embodied in the first sentence or, if necessary, reversing the
original intention to exempt bureau directors from confirmation. I repeat that there were no debates
on this matter as far as I know, which simply means that my humble conjecture on the meaning of
Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely on the same
records. At any rate, this view is more consistent with the general purpose of Article VII, which, to
repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record of the
Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on
page 7, line 28, 1 propose to put a period (.) after 'captain' and on line
29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT
ANY.
Mr. Regalado: Madam President, the Committee accepts 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.
However, the records do not show what particular part of Section 16 the committee chairman was
referring to, and a reading in its entirety of this particular debate will suggest that the body was
considering the first sentence of the said section, which I reiterate is not the controversial provision.
In any case, although the excerpt shows that the proposed amendment of Commissioner Foz was
accepted by the committee, it is not reflected, curiously enough, in the final version of Section 16 as
a perusal thereof will readily reveal. Whether it was deleted later in the session or reworded by the
style committee or otherwise replaced for whatever reason will need another surmise on this rather
confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and are
at best persuasive only and not necessarily conclusive. Interestingly, some quarters have observed
that the Congress is not prevented from adding to the list of officers subject to confirmation by the
Commission on Appointments and cite the debates on this matter in support of this supposition. It is
true enough that there was such a consensus, but it is equally true that this thinking is not at all
expressed, or even only implied, in the language of Section 16 of Article VII. Which should prevail
then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question either
that it is not absolute or unlimited. The rule re- established by the new Constitution is that the power
requires confirmation by the Commission on Appointments as a restraint on presidential excesses, in
line with the system of checks and balances. I submit it is the exception to this rule, and not the rule,
that should be strictly construed.
In my view, the only officers appointed by the President who are not subject to confirmation by the
Commission on Appointments are (1) the members of the judiciary and the Ombudsman and his
deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in rank," but only when their appointment is
vested by law in the President alone. It is clear that this enumeration does not include the
respondent Commissioner of Customs who, while not covered by the first sentence of Section 16,
comes under the second sentence thereof as I would interpret it and so is also subject to
confirmation.
I vote to grant the petition.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON

JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R.
MALLILLIN, respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin

PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the question of
which appointments by the President, under the 1987 Constitution, are to be made with and without the
review of the Commission on Appointments. The Mison case was the first major case under the 1987
Constitution and in construing Sec. 16, Art. VII of the 1987 Constitution which provides:
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 of the armed forces from the rank of colonel
or naval captain, 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 the
departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the
country's experience under the 1935 and 1973 Constitutions, held that only those appointments
expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the Commission
on Appointments, namely, "the heads of the executive department, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this Constitution." All other appointments by
the President are to be made without the participation of the Commission on Appointments.
Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as head of
the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid
and in accordance with the Constitution.
The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec. 16,
Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as construed by
this Court in appropriate cases, is the supreme law of the land. And it cannot be over-stressed that
the strength of the Constitution, with all its imperfections, lies in the respect and obedience accorded
to it by the people, especially the officials of government, who are the subjects of its commands.

Barely a year after Mison, the Court is again confronted with a similar question, this time, whether or
not the appointment by the President of the Chairman of the Commission on Human Rights (CHR),
an "independent office" created by the 1987 Constitution, is to be made with or without the
confirmation of the Commission on Appointments (CA, for brevity). Once more, as in Mison, the
Court will resolve the issue irrespective of the parties involved in the litigation, mindful that what
really matters are the principles that will guide this Administration and others in the years to come.
Since the position of Chairman of the Commission on Human Rights is not among the positions
mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which
are to be made with the confirmation of the Commission on Appointments, it follows that the
appointment by the President of the Chairman of the (CHR), is to be made without the review or
participation of the Commission on Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission on Human
Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of
the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose
appointments are expressly vested by the Constitution in the President with the consent of the
Commission on Appointments. 2
The President appoints the Chairman and Members of the Commission on Human Rights pursuant
to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on
Appointments because they are among the officers of government "whom he (the President) may be
authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes
the President to appoint the Chairman and Members of the Commission on Human Rights. It
provides:
(c) The Chairman and the Members of the Commission on Human Rights shall be
appointed by the President for a term of seven years without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor.
The above conclusions appear to be plainly evident and, therefore, irresistible. However, the
presence in this case of certain elements absent in the Mison case makes necessary a closer
scrutiny. The facts are therefore essential.
On 27 August 1987, the President of the Philippines designated herein petitioner Mary Concepcion
Bautista as"Acting Chairman, Commission on Human Rights." The letter of designation reads:
27 August 1987
M a d a m:
You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN
RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes.
Very
truly
yours,

CORAZ
ON C.
AQUIN
O
HON. MARY CONCEPCION BAUTISTA 3
Realizing perhaps the need for a permanent chairman and members of the Commission on Human
Rights, befitting an independent office, as mandated by the Constitution, 4 the President of the
Philippines on 17 December 1988 extended to petitioner Bautista a permanent appointment as Chairman
of the Commission. The appointment letter is as follows:
17
Decem
ber
1988
The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila
M a d a m:
Pursuant to the provisions of existing laws, the following are hereby appointed to the
positions indicated opposite their respective names in the Commission on Human
Rights:
MARY CONCEPCION BAUTISTA Chairman
ABELARDO L. APORTADERA, JR Member
SAMUEL SORIANO Member
HESIQUIO R. MALLILLIN Member
NARCISO C. MONTEIRO Member
By virtue hereof, they may qualify and enter upon the performance of the duties of
the office furnishing this Office and the Civil Service Commission with copies of their
oath of office.
Very
truly
yours,
CORA
ZON C.
AQUIN
O5
It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President
that she could qualify and enter upon the performance of the duties of the office of Chairman of the

Commission on Human Rights, requiring her to furnish the office of the President and the Civil
Service Commission with copies of her oath of office.
On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner
Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on
Human Rights. The full text of the oath of office is as follows:
OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal,
Makati, Metro Manila having been appointed to the position of CHAIRMAN of the
Commission on Human Rights, do solemnly swear that I will discharge to the best of
my ability all the duties and responsibilities of the office to which I have been
appointed; uphold the Constitution of the Republic of the Philippines, and obey all the
laws of the land without mental reservation or purpose of evasion.
SO HELP ME GOD.
MARY
CONC
EPCIO
N
BAUTI
STA
SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of
Our Lord, 1988 in Manila.
M
A
R
C
E
L
O
B
.
F
E
R
N
A
N
Chief
Justice

Supre
me
Court
of the
Philippi
nes 6
Immediately, after taking her oath of office as Chairman of the Commission on Human Rights,
petitioner Bautista discharged the functions and duties of the Office of Chairman of the Commission
on Human Rights which, as previously stated, she had originally held merely in an acting capacity
beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on
Appointments requesting her to submit to the Commission certain information and documents as
required by its rules in connection with the confirmation of her appointment as Chairman of the
Commission on Human Rights. 7 On 10 January 1989, the Commission on Appointments' Secretary
again wrote petitioner Bautista requesting her presence at a meeting of the Commission on Appointments
Committee on Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at
the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that would deliberate on
her appointment as Chairman of the Commission on Human Rights. 8
On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments
stating, for the reasons therein given, why she considered the Commission on Appointments as
having no jurisdiction to review her appointment as Chairman of the Commission on Human Rights.
The petitioner's letter to the Commission on Appointments' Chairman reads:
January
13, 1
989
SENATE PRESIDENT JOVITO R. SALONGA
Chairman
Commission on Appointments
Senate, Manila
S i r:
We acknowledge receipt of the communication from the Commission on
Appointments requesting our appearance on January 19, 1989 for deliberation on
our appointments.
We respectfully submit that the appointments of the Commission commissioners of
the Human Rights Commission are not subject to confirmation by the Commission on
Appointments.
The Constitution, in Article VII Section 16 which expressly vested on the President
the appointing power, has expressly mentioned the government officials whose
appointments are subject to the confirmation of the Commission on Appointments of

Congress. The Commissioners of the Commission on Human Rights are not included
among those.
Where the confirmation of the Commission on Appointments is required, as in the
case of the Constitutional Commissions such as the Commission on Audit, Civil
Service Commission and the Commission on Elections, it was expressly provided
that the nominations will be subject to confirmation of Commission on Appointments.
The exclusion again of the Commission on Human Rights, a constitutional office,
from this enumeration is a clear denial of authority to the Commission on
Appointments to review our appointments to the Commission on Human Rights.
Furthermore, the Constitution specifically provides that this Commission is
an independent office which:
a. must investigate all forms of human rights violations involving civil
and political rights;
b. shall monitor the government's compliance in all our treaty
obligations on human rights. We submit that, the monitoring of all
agencies of government, includes even Congress itself, in the
performance of its functions which may affect human rights;
c. may call on all agencies of government for the implementation of
its mandate.
The powers of the Commission on Appointments is in fact a derogation of the Chief
Executive's appointing power and therefore the grant of that authority to review a
valid exercise of the executive power can never be presumed. It must be expressly
granted.
The Commission on Appointments has no jurisdiction under the Constitution to
review appointments by the President of Commissioners of the Commission on
Human Rights.
In view of the foregoing considerations, as Chairman of an independent constitutional
office. I cannot submit myself to the Commission on Appointments for the purpose of
confirming or rejecting my appointment.
Very
truly
yours,
MARY
CONCE
PCION
BAUTIS
TA
Chairm
an 9

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as
Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon.
Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her Excellency
extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission
on Human Rights" 10 and informing Secretary Macaraig that, as previously conveyed to him in a letter of
25 January 1989, the Commission on Appointments disapproved petitioner Bautista's "ad
interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submit
to the jurisdiction of the Commission on Appointments. The letter reads:

1 February 1989
HON. CATALINO MACARAIG, JR.
Executive Secretary
Malacanang, Manila
S i r:
This refers to the ad interim appointment which Her Excellency extended to Atty.
Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission
on Human Rights.
As we conveyed to you in our letter of 25 January 1989, the Commission on
Appointments, assembled in plenary (session) on the same day, disapproved Atty.
Bautista's ad interim appointment as Chairperson of the Commission on Human
Rights in view of her refusal to submit to the jurisdiction of the Commission on
Appointments.
This is to inform you that the Commission on Appointments, likewise assembled in
plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for
reconsideration of the disapproval of Atty. Bautista's ad interim appointment as
Chairperson of the Commission on Human Rights.
Very
truly
yours,
RAOUL V.
VICTORINO
Secretary 11
On the same date (1 February 1989), the Commission on Appointments' Secretary informed
petitioner Bautista that the motion for reconsideration of the disapproval of her "ad
interim appointment as Chairman of the Commission on Human Rights" was denied by the
Commission on Appointments. The letter reads as follows:
1
Februar
y 1989

ATTY. MARY CONCEPCION BAUTISTA


Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila
Dear Atty. Bautista:
Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments,
the denial by the Commission on Appointments, assembled in plenary (session)
earlier today, of Senator Mamintal A.J. Tamano's motion for reconsideration of the
disapproval of your ad interim appointment as Chairperson of the Commission on
Human Rights is respectfully conveyed.
Thank you for your attention.
Very
truly
yours,

RAOUL V. VICT
Secretary 12
In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item
appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President had
designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission"
pending the resolution of Bautista's case which had been elevated to the Supreme Court. The news
item is here quoted in full, thus
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential Commission on Human
Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew
by the Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R. Mallillin as acting
chairman of the Commission pending the resolution of Bautista's case which had
been elevated to the Supreme Court.
The President's action followed after Congressional Commission on Appointments
Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on
to her position after her appointment was not confirmed for the second time.
For all practical purposes, Salonga said Bautista can be accused of usurpation of
authority if she insists to stay on her office.
In effect, the President had asked Bautista to vacate her office and give way to
Mallillin (Mari Villa) 13

On 20 January 1989, or even before the respondent Commission on Appointments had acted on her
"ad interimappointment as Chairman of the Commission on Human Rights" petitioner Bautista filed
with this Court the present petition for certiorari with a prayer for the immediate issuance of a
restraining order, to declare "as unlawful and unconstitutional and without any legal force and effect
any action of the Commission on Appointments as well as of the Committee on Justice, Judicial and
Bar Council and Human Rights, on the lawfully extended appointment of the petitioner as Chairman
of the Commission on Human Rights, on the ground that they have no lawful and constitutional
authority to confirm and to review her appointment." 14
The prayer for temporary restraining order was "to enjoin the respondent Commission on
Appointments not to proceed further with their deliberation and/or proceedings on the appointment of
the petitioner ... nor to enforce, implement or act on any order, resolution, etc. issued in the course of
their deliberations." 15
Respondents were required to file comment within ten (10) days. 16 On 7 February 1989, petitioner
filed an amended petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R.
Mallillin the designated acting chairman as party respondent and praying for the nullification of his
appointment. The succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking
to restrain respondent Mallillin from continuing to exercise the functions of chairman and to refrain from
demanding courtesy resignations from officers or separating or dismissing employees of the Commission.
Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved
to issue a temporary restraining order directing respondent Mallillin to cease and desist from
effecting the dismissal, courtesy resignation, i removal and reorganization and other similar
personnel actions. 17 Respondents were likewise required to comment on said amended petition with
allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof.
Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and
Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner filed her
reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The Court required
petitioner to reply to respondent Mallillin's comment . 21Petitioner filed her reply. 22
In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal
branch of government, the Court did not issue a temporary restraining order directed against it.
However, this does not mean that the issues raised by the petition, as met by the respondents'
comments, will not be resolved in this case. The Court will not shirk from its duty as the final arbiter
of constitutional issues, in the same way that it did not in Mison.
As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was
extended by Her Excellency, the President a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting
Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an appointment that
was for the President solely to make, i.e., not an appointment to be submitted for review and
confirmation (or rejection) by the Commission on Appointments. This is in accordance with Sec. 16,
Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated.
The threshold question that has really come to the fore is whether the President, subsequent to her
act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had
been appointed, by taking the oath of office and actually assuming and discharging the functions and

duties thereof, could extend another appointment to the petitioner on 14 January 1989, an "ad
interim appointment" as termed by the respondent Commission on Appointments or any other kind of
appointment to the same office of Chairman of the Commission on Human Rights that called for
confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and Legislative Departments of government,
and after careful deliberation, is constrained to hold and rule in the negative. When Her Excellency,
the President converted petitioner Bautista's designation as Acting Chairman to a permanent
appointment as Chairman of the Commission on Human Rights on 17 December 1988, significantly
she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could
qualify and enter upon the performance of the duties of the office (of Chairman of the Commission
on Human Rights). All that remained for Bautista to do was to reject or accept the appointment.
Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the
Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and
duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore on 17
December 1988 as Chairman of the Commission on Human Rights was a completed act on the part
of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of
Marbury vs. Madison. 23
xxx xxx xxx
The answer to this question seems an obvious one. The appointment being the sole
act of the President, must be completely evidenced, when it is shown that he has
done everything to be performed by him.
xxx xxx xxx
Some point of time must be taken when the power of the executive over an officer,
not removable at his will must cease. That point of time must be when the
constitutional power of appointment has been exercised. And this power has been
exercised when the last act, required from the person possessing the power, has
been performed. ....
xxx xxx xxx
But having once made the appointment, his (the President's) power over the office is
terminated in all cases, where by law the officer is not removable by him. The right to
the office is then in the person appointed, and he has the absolute, unconditional
power of accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989
It is respondent Commission's submission that the President, after the appointment of 17 December
1988 extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to
petitioner Bautista, this time, submitting such appointment (more accurately, nomination) to the
Commission on Appointments for confirmation. And yet, it seems obvious enough, both in logic and
in fact, that no new or further appointment could be made to a position already filled by a previously

completed appointment which had been accepted by the appointee, through a valid qualification and
assumption of its duties.
Respondent Commission vigorously contends that, granting that petitioner's appointment as
Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the
president's prerogative to voluntarily submit such appointment to the Commission on Appointment
for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that
the President (with Congress agreeing) may, from time to time move power boundaries, in the
Constitution differently from where they are placed by the Constitution.
The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with,
is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the
Executive nor the Legislative (Commission on Appointments) can create power where the
Constitution confers none. The evident constitutional intent is to strike a careful and delicate
balance, in the matter of appointments to public office, between the President and Congress (the
latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to
disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked
off certain appointments for the President to make with the participation of the Commission on
Appointments, so also has the Constitution mandated that the President can confer no power of
participation in the Commission on Appointments over other appointments exclusively reserved for
her by the Constitution. The exercise of political options that finds no support in the Constitution
cannot be sustained.
Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited
power to review presidential appointments, create power to confirm appointments that the
Constitution has reserved to the President alone. Stated differently, when the appointment is one
that the Constitution mandates is for the President to make without the participation of the
Commission on Appointments, the executive's voluntary act of submitting such appointment to the
Commission on Appointments and the latter's act of confirming or rejecting the same, are done
without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON
APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO
HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON
14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the
Commission on Appointments to exercise the power of review over an appointment otherwise solely
vested by the Constitution in the President. Yet, as already noted, when the President appointed
petitioner Bautista on 17 December 1988 to the position of Chairman of the Commission on Human
Rights with the advice to her that by virtue of such appointment (not, until confirmed by the
Commission on Appointments), she could qualify and enter upon the performance of her duties after
taking her oath of office, the presidential act of appointment to the subject position which, under the
Constitution, is to be made, in the first place, without the participation of the Commission on
Appointments, was then and there a complete and finished act, which, upon the acceptance by
Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said
office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on
Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14

January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said
office to this day.
Nor can respondents impressively contend that the new appointment or re-appointment on 14
January 1989 was anad interim appointment, because, under the Constitutional design, ad
interim appointments do not apply to appointments solely for the President to make, i.e., without the
participation of the Commission on Appointments. Ad interim appointments, by their very nature
under the 1987 Constitution, extend only to appointments where the review of the Commission on
Appointments is needed. That is why ad interim appointments are to remain valid until disapproval
by the Commission on Appointments or until the next adjournment of Congress; but appointments
that are for the President solely to make, that is, without the participation of the Commission on
Appointments, can not be ad interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE
CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE
PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without confirmation by the Commission on Appointments,
petitioner Bautista, as Chairman of the Commission on Human Rights, can be removed from said
office at anytime, at the pleasure of the President; and that with the disapproval of Bautista's
appointment (nomination) by the Commission on Appointments, there was greater reason for her
removal by the President and her replacement with respondent Mallillin Thus, according to
respondent Mallillin the petition at bar has become moot and academic.
We do not agree that the petition has become moot and academic. To insist on such a posture is
akin to deluding oneself that day is night just because the drapes are drawn and the lights are on.
For, aside from the substantive questions of constitutional law raised by petitioner, the records
clearly show that petitioner came to this Court in timely manner and has not shown any indication of
abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of
which is as follows:
WHEREAS, the Constitution does not prescribe the term of office of the Chairman
and Members of the Commission on Human Rights unlike those of other
Constitutional Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do
hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby
amended to read as follows:
The Chairman and Members of the Commission on Human Rights shall be appointed
by the President. Their tenure in office shall be at the pleasure of the President.
SEC. 2. This Executive Order shall take effect immediately. DONE in the City of
Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eightyseven.

(Sgd.)
CORAZ
ON C.
AQUIN
O
Preside
nt of the
Philippi
nes
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163
the President, Sec. 2(c) of which provides:

25

was issued by

Sec. 2(c). The Chairman and the Members of the Commission on Human Rights
shall be appointed by the President for a term of seven years without reappointment.
Appointments to any vacancy shall be only for the unexpired term of the
predecessor.
It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the
Chairman and Members of the Commission on Human Rights which is seven (7) years without
reappointment the later executive order (163-A) speaks of the tenure in office of the Chairman
and Members of the Commission on Human Rights, which is "at the pleasure of the President."
Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice)
Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important, for, pursuant to the
Constitution, "no officer or employee in the Civil Service may be removed or
suspended except for cause, as provided by law" (Art. XII, section 4), and this
fundamental principle would be defeated if Congress could legally make the tenure of
some officials dependent upon the pleasure of the President, by clothing the latter
with blanket authority to replace a public officer before the expiration of his term. 27
When Executive Order No. 163 was issued, the evident purpose was to comply with the
constitutional provision that "the term of office and other qualifications and disabilities of the
Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987
Constitution).
As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven
(7) years, without reappointment, as provided by Executive Order No. 163, and consistent with the
constitutional design to give the Commission the needed independence to perform and accomplish
its functions and duties, the tenure in office of said Chairman (and Members) cannot be later made
dependent on the pleasure of the President.

Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the
power of the President, sustained therein, to replace a previously appointed vice-mayor of Roxas
City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that
the vice-mayor shall serve at the pleasure of the President, can find no application to the Chairman
of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself. Besides, unlike
in the Alba case, here the Constitution has decreed that the Chairman and Members of the
Commission on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent as the Commission on Human Rights-and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its
constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point to its
being plainly at war with the constitutional intent of independence for the Commission. Thus
MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this
body to be constitutionalized is the fact that regardless of who is the President or
who holds the executive power, the human rights issue is of such importance that it
should be safeguarded and it should be independent of political parties or powers
that are actually holding the reins of government. Our experience during the martial
law period made us realize how precious those rights are and, therefore, these must
be safeguarded at all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the
power of the Commission on Human Rights to be coterminous with the president,
because the President's power is such that if he appoints a certain commissioner
and that commissioner is subject to the President, therefore, any human rights
violations committed under the person's administration will be subject to presidential
pressure. That is what we would like to avoid to make the protection of human
rights go beyond the fortunes of different political parties or administrations in
power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable
Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that
there should be an independent Commission on Human Rights free from executive
influence because many of the irregularities on human rights violations are
committed by members of the armed forces and members of the executive branch of
the government. So as to insulate this body from political interference, there is a
need to constitutionalize it. 29

xxx xxx xxx


MR. SARMIENTO: On the inquiry on whether there is a need for this to be
constitutionalized, I would refer to a previous inquiry that there is still a need for
making this a constitutional body free or insulated from interference. I conferred with
former Chief Justice Concepcion and the acting chairman of the Presidential
Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in
saying that this body should be constitutionalized so that it will be free from executive
control or interferences, since many of the abuses are committed by the members of
the military or the armed forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we
leave it to Congress, this commission will be within the reach of politicians and of
public officers and that to me is dangerous. We should insulate this body from
political control and political interference because of the nature of its functions to
investigate all forms of human rights violations which are principally committed by
members of the military, by the Armed Forces of the Philippines. 31
xxx xxx xxx

MR. GARCIA. The critical factor here is political control, and normally, when a body is
appointed by Presidents who may change, the commission must remain above these
changes in political control. Secondly, the other important factor to consider are the
armed forces, the police forces which have tremendous power at their command
and, therefore, we would need a commission composed of men who also are beyond
the reach of these forces and the changes in political administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's position that this proposed special body, in
order to function effectively, must be invested with an independence that is
necessary not only for its credibility but also for the effectiveness of its work.
However, we want to make a distinction in this Constitution. May be what happened
was that it was referred to the wrong committee. In the opinion of the committee, this
need not be a commission that is similar to the three constitutional commissions like
the COA, the COMELEC, and the Civil Service. It need not be in that article. 33
xxx xxx xxx
MR. COLAYCO. The Commissioners earlier objection was that the Office of the
President is not involved in the project. How sure are we that the next President of
the Philippines will be somebody we can trust? Remember, even now there is a
growing concern about some of the bodies, agencies and commission created by
President Aquino. 34
xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights is giving
less importance to a truly fundamental need to set up a body that will effectively
enforce the rules designed to uphold human rights. 35
PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE
To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman
of the Commission on Human Rights by virtue of her appointment, as such, by the President on 17
December 1988, and her acceptance thereof, is not to say that she cannot be removed from office
before the expiration of her seven (7) year term. She certainly can be removed but her removal must
be for cause and with her right to due process properly safeguarded. In the case of NASECO vs.
NLRC, 36 this Court held that before a rank-and-file employee of the NASECO, a government-owned
corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in the
case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on
Human Rights.
If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed
against her with the Ombudsman. If he finds a prima facie case against her, the corresponding
information or informations can be filed with the Sandiganbayan which may in turn order her
suspension from office while the case or cases against her are pending before said court. 37 This is
due process in action. This is the way of a government of laws and not of men.
A FINAL WORD
It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had
elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the
Commission on Human Rights (pending decision in this case) instead of appointing another
permanent Chairman. The latter course would have added only more legal difficulties to an already
difficult situation.
WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly
appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled
to all the benefits, privileges and emoluments of said office. The temporary restraining order
heretofore issued by the Court against respondent Mallillin enjoining him from dismissing or
terminating personnel of the Commission on Human Rights is made permanent.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes and Regalado, JJ., concur.
Fernan, C.J., took no part, having administered petitioner's oath of office.
Sarmiento, J., took no part, respondent Mallillin is my godson.

Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion


With all due respect for the contrary view of the majority in the Court, I maintain that it is asking too
much to expect a constitutional ruling which results in absurd or irrational consequences to ever
become settled.
The President and Congress, the appointees concerned, and the general public may in time accept
the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional
provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be disturbed until the meaning of the consent
power of the Commission on Appointments is straightened out either through a re-examination of
this Court's decision or an amendment to the Constitution.
Section 16, Article VII of the Constitution consists of only three sentences. The officers specified in
the first sentence clearly require confirmation by the Commission on Appointments. The officers
mentioned in the third sentence just as clearly do not require confirmation. The problem area lies
with those in the second sentence.
I submit that we should re-examine the three groups of presidential appointees under the three
sentences of Section 16.
The first group are the heads of executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from colonel or naval captain, and other officers whose
appointments are vested in the President by the Constitution. The first sentence of Section 16 state
they must be confirmed by the Commission on Appointments.
The third group are officers lower in rank whose appointments Congress has by law vested in the
President alone. They need no confirmation.
The second group of presidential appointees are "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." To which group do they belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?
No matter how often and how long I read the second sentence of Section 16, I simply cannot
associate the officers mentioned therein as forming part of those referred to in the third sentence.
Why am I constrained to hold this view?
(1) If the officers in the first group are the only appointees who need confirmation, there would be no
need for the second and third sentences of Section 16. They become superfluous. Any one not
falling under an express listing would need no confirmation. I think the Court is wrong in treating two
carefully crafted and significant provisions of the fundamental law as superfluities. Except for the

most compelling reasons, which do not exist here, no constitutional provision should be considered a
useless surplusage.
(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view
results in the absurd consequence where one of several hundred colonels and naval captains must
be confirmed but such important officers as the Governor of the Central Bank with broad powers
over the nation's economy and future stability or the Chairman of the Commission on Human Rights
whose office calls for no less than a constitutional mandate do not have to be scrutinized by the
Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough
scrutiny during the confirmation process while the Undersecretary of Foreign Affairs who sends him
there and who exercises control over his acts can be appointed by the President alone? Why should
we interpret Section 16 in such a strange and irrational manner when no strained construction is
needed to give it a logical and more traditional and understandable meaning.?
(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see the
word "also" in a sentence, we associate it with preceding sentences, never with the different
sentence that follows. On the other hand, the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President "alone." This can only mean that the higher
ranking officers in the second sentence must also be appointed with the concurrence of the
Commission on Appointments. When the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other and higher ranking officers as also
appointed by heralone. The strained interpretation by the Court's majority makes the word "alone"
meaningless if the officers to whom "alone" is not appended are also included in the third group.
(4) The third sentence of Section 16 requires a positive act of Congress which vests an appointment
in the President alone before such an appointment is freed from the scrutiny of the Commission on
Appointments. By express constitutional mandate, it is Congress which determines who do not need
confirmation. Under the majority ruling of the Court, if Congress creates an important office and
requires the consent of the Commission before a presidential appointment to that office is perfected,
such a requirement would be unconstitutional. I believe that the Constitution was never intended to
so restrict the lawmaking power. The Court has no jurisdiction to limit the plenary lawmaking power
of the people's elected representatives through an implied and, I must again add, a strained reading
of the plain text of Section 16. Any restriction of legislative power must be categorical, express, and
specific-never implied or forced.
(5) The Constitution specifies clearly the presidential appointees who do not need confirmation by
the Commission. The reason for non-confirmation is obvious. The members of the Supreme Court
and all lower courts and the Ombudsman and his deputies are not confirmed because the Judicial
and Bar Council screens nominees before their names are forwarded to the President. The VicePresident as a cabinet member needs no confirmation because the Constitution says so. He or she
is chosen by the nation's entire electorate and is only a breath away from the Presidency. Those
falling under the third sentence of Section 16, Article VII do not have to be confirmed because the
Constitution gives Congress the authority to free lower ranking officials whose positions are created
by law from that requirement. I believe that we in the Court have no power to add by implication to
the list of presidential appointees whom the Constitution in clear and categorical words declares as
not needing confirmation.

(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an


important constitutional body which helps give fuller expression to the democratic principles inherent
in our presidential form of government.
There are those who would render innocuous the Commission's power or perhaps even move for its
abolition as a protest against what they believe is too much horsetrading or sectarian politics in the
exercise of its functions. Since the President is a genuinely liked and popular leader, personally
untouched by scandal, who appears to be motivated only by the sincerest of intentions, these people
would want the Commission to routinely rubberstamp those whom she appoints to high office.
Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section 16
was intended to check abuse or ill-considered appointments by a President who belongs to the latter
class.
It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly
represents the people. We should not expect Congress to act only as the selfless Idealists, the wellmeaning technocrats, the philosophers, and the coffee-shop pundits would have it move. The
masses of our people are poor and underprivileged, without the resources or the time to get publicly
involved in the intricate workings of Government, and often ill-informed or functionally illiterate.
These masses together with the propertied gentry and the elite class can express their divergent
views only through their Senators and Congressmen. Even the buffoons and retardates deserve to
have their interests considered and aired by the people's representatives. In the democracy we have
and which we try to improve upon, the Commission on Appointments cannot be expected to function
like a mindless machine without any debates or even imperfections. The discussions and
wranglings, the delays and posturing are part of the democratic process. They should never be used
as arguments to restrict legislative power where the Constitution does not expressly provide for such
a limitation.
The Commission on Human Rights is a very important office. Our country is beset by widespread
insurgency, marked inequity in the ownership and enjoyment of wealth and political power, and
dangerous conflicts arising from Ideological, ethnic and religious differences. The tendency to use
force and violent means against those who hold opposite views appears irresistible to the holders of
both governmental and rebel firepower.
The President is doubly careful in the choice of the Chairman and Members of the Commission on
Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointments to be
a joint responsibility of the Presidency and Congress, through the Commission on Appointments.
She wants a more thorough screening process for these sensitive positions. She wants only the best
to survive the process.
Why should we tell both the President and Congress that they are wrong.?
Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in his appointment than the Chairman of the Human
Rights Commission who has infinitely more power and opportunity to bring the rebellion to a just and
satisfactory end.

But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the Chairman of
the Human Rights Commission as one of the "other officers whose appointments are vested in him
in this Constitution" under the first sentence of Section 16, Article VII. Certainly, the chairman cannot
be appointed by Congress or the Supreme Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower ranking officers who by law may be
appointed by the head of an executive department, agency, commission, or board. The Constitution
created the independent office. The President was intended to appoint its chairman.
I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the call
for a re-examination of its doctrine.
CRUZ, J., dissenting:
This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted by
the Court more than a year ago over two dissents. The President of the Philippines has taken a
second look at it, and so too has the Commission on Appointments representing both Houses of the
Congress of the Philippines. It appears that they are not exactly certain now that the decision in that
case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to read the
Constitution again on the possibility that we may have misread it before.
The ponencia assumes that we were right the first time and that the Mison case is settled there is
no need to re-examine it. It therefore approaches the problem at hand from another perspective and
would sustain the petitioner on an additional ground.
The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not
confirmed, conformably to Mison, and could not be replaced with the second appointment on 14
January 1989 because there was no vacancy to fill. By this reasoning, the opinion would definitely
avoid the question squarely presented to the Court, viz., whether or not the Chairman of the
Commission on Human Rights is subject to confirmation as required now by both the President of
the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the
Mison ruling in the light of this supervening significant albeit decidedly not controlling circumstance.
The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we must
address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-seeit-now-you-don't.
As one who never agreed with the bison ruling in the first place, I suspect that the seeming
diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its
correctness. I think this is the reason another justification had to be offered to bolster Mison.
In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human Rights
as among the important officers who would not have to be confirmed if the majority view were to be
followed. By contrast, and inexplicably, the colonel in the armed forces would need confirmation
although he is not a constitutional officer with the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the relatively minor multisectoral
representative of the regional consultative commission, and the Undersecretary of Foreign Affairs
although the consul, who is his subordinate, would need confirmation. When I pointed to these
incongruous situations, I was told it was not our place to question the wisdom of the Constitution.

What I was questioning was not the wisdom of the Constitution but the wisdom of our interpretation
which I said would lead to absurd consequences. But only Justice Gutierrez agreed with me.
Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our own
ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a
circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a
clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at least
insofar as it applies to the present case. Signifi cantly the Commission on Appointments, which was
also aware of Mison, has as clearly rejected it by acting on the appointment. These meaningful
developments must give us pause. We may have committed an error in Mison, which is bad enough,
and may be persisting in it now, which is worse.
Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with my
view in Mison, I submit that what President Aquino extended to the petitioner on 17 December 1988
was an ad interim appointment that although immediately effective upon acceptance was still subject
to confirmation. I cannot agree that when the President said the petitioner could and enter into the
performance of her duties, "all that remained for Bautista to do was to reject or accept the
appointment." In fact, on the very day it was extended, the ad interim appointment was submitted by
the President of the Philippines to the Commission on Appointments "for confirmation."
The ponencia says that the appointment did not need any confirmation, being the sole act of the
President under the Mison ruling. That would have settled the question quite conclusively, but the
opinion goes on to argue another justification that I for one find unnecessary, not to say untenable. I
sense here a palpable effort to bolster Mison because of the apprehension that it is falling apart.
Of course, there was no vacancy when the nomination was made on 14 January 1989. There is no
question that the petitioner was still validly holding the office by virtue of her ad interim appointment
thereto on 17 December 1988. The nomination made later was unnecessary because the ad
interim appointment was still effective. When the Commission on Appointments sent the petitioner
the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain data and
inviting her to appear before it, it was acting not on the nomination but on the ad
interim appointment. What was disapproved was the ad interim appointment, not the nomination.
The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best, it is
important only as an affirmation of the President's acknowledgment that the Chairman of the
Commission on Human Rights must be confirmed under Article VII, Section 16 of the Constitution.
It does not follow, of course, that simply because the President of the Philippines has changed her
mind, and with the expressed support of the Commission on Appointments, we should docilely
submit and reverse Mison. That is not how democracy works. The Court is independent. I do
suggest, however, that the majority could have erred in that case and that the least we can do now is
to take a more careful look at the decision. Let us check our bearings to make sure we have not
gone astray. That is all I ask
I repeat my view that the Chairman of the Commission on Human Rights is subject to confirmation
by the Commission on Appointments, for the reasons stated in my dissent in Mison Accordingly, I
vote to DENY the petition.

GRIO-AQUINO, J.: dissenting:


I believe that the appointments of the chairman and the members of the Commission on Human
Rights by the President require review and confirmation by the Commission on Appointments in view
of the following provision of Section 16, Article VII of the 1987 Constitution:
SEC. 16. 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 of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution....
In my view, the "other officers" whose appointments are vested in the President in the Constitution
are theconstitutional officers, meaning those who hold offices created under the Constitution, and
whose appointments are not otherwise provided for in the Charter. Those constitutional officers are
the chairmen and members of the Constitutional Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IXD), and the Commission on Human Rights (Sec. 17, XIII). These constitutional commissions are,
without excaption, declared to be "independent," but while in the case of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, the 1987 Constitution
expressly provides that "the Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and
Sec. 1[2], Art. IX-D), no such clause is found in Section 17, Article VIII creating the Commission on
Human Rights. Its absence, however, does not detract from, or diminish, the President's power to
appoint the Chairman and Commissioners of the said Commission. The source of that power is the
first sentence of Section 16, Article VII of the Constitution for:
(1) the Commission on Human Rights is an office created by the Constitution, and
(2) the appointment of the Chairman and Commissioners thereof is vested in the President by the
Constitution.
Therefore, the said appointments shall be made by the President with the consent of the
Commission on Appointments, as provided in Section 16, Article VII of the Constitution.
It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirm appointments made by the President is a "derogation of the
Chief Executive's appointing power." That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic form of government provided for in our
Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and President
Vicente G. Sinco:
The function of confirming appointments is part of the power of appointment itself. It
is, therefore, executive rather than legislative in nature. In giving this power to an
organ of the legislative department, the Constitution merely provides a detail in the
scheme of checks and balances between the executive and legislative organs of the
government. (Phil. Political Law by Sinco, 11th ed., p. 266).
WHEREFORE, I vote to dismiss the petition.

Medialdea, J., dissenting:

Separate Opinions
GUTIERREZ, JR., J.: Dissenting Opinion
With all due respect for the contrary view of the majority in the Court, I maintain that it is asking too
much to expect a constitutional ruling which results in absurd or irrational consequences to ever
become settled.
The President and Congress, the appointees concerned, and the general public may in time accept
the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional
provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be disturbed until the meaning of the consent
power of the Commission on Appointments is straightened out either through a re-examination of
this Court's decision or an amendment to the Constitution.
Section 16, Article VII of the Constitution consists of only three sentences. The officers specified in
the first sentence clearly require confirmation by the Commission on Appointments. The officers
mentioned in the third sentence just as clearly do not require confirmation. The problem area lies
with those in the second sentence.
I submit that we should re-examine the three groups of presidential appointees under the three
sentences of Section 16.
The first group are the heads of executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from colonel or naval captain, and other officers whose
appointments are vested in the President by the Constitution. The first sentence of Section 16 state
they must be confirmed by the Commission on Appointments.
The third group are officers lower in rank whose appointments Congress has by law vested in the
President alone. They need no confirmation.
The second group of presidential appointees are "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." To which group do they belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?
No matter how often and how long I read the second sentence of Section 16, I simply cannot
associate the officers mentioned therein as forming part of those referred to in the third sentence.
Why am I constrained to hold this view?

(1) If the officers in the first group are the only appointees who need confirmation, there would be no
need for the second and third sentences of Section 16. They become superfluous. Any one not
falling under an express listing would need no confirmation. I think the Court is wrong in treating two
carefully crafted and significant provisions of the fundamental law as superfluities. Except for the
most compelling reasons, which do not exist here, no constitutional provision should be considered a
useless surplusage.
(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view
results in the absurd consequence where one of several hundred colonels and naval captains must
be confirmed but such important officers as the Governor of the Central Bank with broad powers
over the nation's economy and future stability or the Chairman of the Commission on Human Rights
whose office calls for no less than a constitutional mandate do not have to be scrutinized by the
Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough
scrutiny during the confirmation process while the Undersecretary of Foreign Affairs who sends him
there and who exercises control over his acts can be appointed by the President alone? Why should
we interpret Section 16 in such a strange and irrational manner when no strained construction is
needed to give it a logical and more traditional and understandable meaning.?
(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see the
word "also" in a sentence, we associate it with preceding sentences, never with the different
sentence that follows. On the other hand, the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President "alone." This can only mean that the higher
ranking officers in the second sentence must also be appointed with the concurrence of the
Commission on Appointments. When the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other and higher ranking officers as also
appointed by heralone. The strained interpretation by the Court's majority makes the word "alone"
meaningless if the officers to whom "alone" is not appended are also included in the third group.
(4) The third sentence of Section 16 requires a positive act of Congress which vests an appointment
in the President alone before such an appointment is freed from the scrutiny of the Commission on
Appointments. By express constitutional mandate, it is Congress which determines who do not need
confirmation. Under the majority ruling of the Court, if Congress creates an important office and
requires the consent of the Commission before a presidential appointment to that office is perfected,
such a requirement would be unconstitutional. I believe that the Constitution was never intended to
so restrict the lawmaking power. The Court has no jurisdiction to limit the plenary lawmaking power
of the people's elected representatives through an implied and, I must again add, a strained reading
of the plain text of Section 16. Any restriction of legislative power must be categorical, express, and
specific-never implied or forced.
(5) The Constitution specifies clearly the presidential appointees who do not need confirmation by
the Commission. The reason for non-confirmation is obvious. The members of the Supreme Court
and all lower courts and the Ombudsman and his deputies are not confirmed because the Judicial
and Bar Council screens nominees before their names are forwarded to the President. The VicePresident as a cabinet member needs no confirmation because the Constitution says so. He or she
is chosen by the nation's entire electorate and is only a breath away from the Presidency. Those
falling under the third sentence of Section 16, Article VII do not have to be confirmed because the
Constitution gives Congress the authority to free lower ranking officials whose positions are created
by law from that requirement. I believe that we in the Court have no power to add by implication to

the list of presidential appointees whom the Constitution in clear and categorical words declares as
not needing confirmation.
(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an
important constitutional body which helps give fuller expression to the democratic principles inherent
in our presidential form of government.
There are those who would render innocuous the Commission's power or perhaps even move for its
abolition as a protest against what they believe is too much horsetrading or sectarian politics in the
exercise of its functions. Since the President is a genuinely liked and popular leader, personally
untouched by scandal, who appears to be motivated only by the sincerest of intentions, these people
would want the Commission to routinely rubberstamp those whom she appoints to high office.
Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section 16
was intended to check abuse or ill-considered appointments by a President who belongs to the latter
class.
It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly
represents the people. We should not expect Congress to act only as the selfless Idealists, the wellmeaning technocrats, the philosophers, and the coffee-shop pundits would have it move. The
masses of our people are poor and underprivileged, without the resources or the time to get publicly
involved in the intricate workings of Government, and often ill-informed or functionally illiterate.
These masses together with the propertied gentry and the elite class can express their divergent
views only through their Senators and Congressmen. Even the buffoons and retardates deserve to
have their interests considered and aired by the people's representatives. In the democracy we have
and which we try to improve upon, the Commission on Appointments cannot be expected to function
like a mindless machine without any debates or even imperfections. The discussions and
wranglings, the delays and posturing are part of the democratic process. They should never be used
as arguments to restrict legislative power where the Constitution does not expressly provide for such
a limitation.
The Commission on Human Rights is a very important office. Our country is beset by widespread
insurgency, marked inequity in the ownership and enjoyment of wealth and political power, and
dangerous conflicts arising from Ideological, ethnic and religious differences. The tendency to use
force and violent means against those who hold opposite views appears irresistible to the holders of
both governmental and rebel firepower.
The President is doubly careful in the choice of the Chairman and Members of the Commission on
Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointments to be
a joint responsibility of the Presidency and Congress, through the Commission on Appointments.
She wants a more thorough screening process for these sensitive positions. She wants only the best
to survive the process.
Why should we tell both the President and Congress that they are wrong.?
Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in his appointment than the Chairman of the Human

Rights Commission who has infinitely more power and opportunity to bring the rebellion to a just and
satisfactory end.
But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the Chairman of
the Human Rights Commission as one of the "other officers whose appointments are vested in him
in this Constitution" under the first sentence of Section 16, Article VII. Certainly, the chairman cannot
be appointed by Congress or the Supreme Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower ranking officers who by law may be
appointed by the head of an executive department, agency, commission, or board. The Constitution
created the independent office. The President was intended to appoint its chairman.
I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the call
for a re-examination of its doctrine.
CRUZ, J., dissenting:
This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted by
the Court more than a year ago over two dissents. The President of the Philippines has taken a
second look at it, and so too has the Commission on Appointments representing both Houses of the
Congress of the Philippines. It appears that they are not exactly certain now that the decision in that
case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to read the
Constitution again on the possibility that we may have misread it before.
The ponencia assumes that we were right the first time and that the Mison case is settledthere is
no need to re-examine it. It therefore approaches the problem at hand from another perspective and
would sustain the petitioner on an additional ground.
The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not
confirmed, conformably to Mison, and could not be replaced with the second appointment on 14
January 1989 because there was no vacancy to fill. By this reasoning, the opinion would definitely
avoid the question squarely presented to the Court, viz., whether or not the Chairman of the
Commission on Human Rights is subject to confirmation as required now by both the President of
the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the
Mison ruling in the light of this supervening significant albeit decidedly not controlling circumstance.
The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we must
address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-seeit-now-you-don't.
As one who never agreed with the bison ruling in the first place, I suspect that the seeming
diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its
correctness. I think this is the reason another justification had to be offered to bolster Mison.
In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human Rights
as among the important officers who would not have to be confirmed if the majority view were to be
followed. By contrast, and inexplicably, the colonel in the armed forces would need confirmation
although he is not a constitutional officer with the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the relatively minor multisectoral
representative of the regional consultative commission, and the Undersecretary of Foreign Affairs

although the consul, who is his subordinate, would need confirmation. When I pointed to these
incongruous situations, I was told it was not our place to question the wisdom of the Constitution.
What I was questioning was not the wisdom of the Constitution but the wisdom of our interpretation
which I said would lead to absurd consequences. But only Justice Gutierrez agreed with me.
Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our own
ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a
circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a
clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at least
insofar as it applies to the present case. Signifi cantly the Commission on Appointments, which was
also aware of Mison, has as clearly rejected it by acting on the appointment. These meaningful
developments must give us pause. We may have committed an error in Mison, which is bad enough,
and may be persisting in it now, which is worse.
Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with my
view in Mison, I submit that what President Aquino extended to the petitioner on 17 December 1988
was an ad interim appointment that although immediately effective upon acceptance was still subject
to confirmation. I cannot agree that when the President said the petitioner could and enter into the
performance of her duties, "all that remained for Bautista to do was to reject or accept the
appointment." In fact, on the very day it was extended, the ad interim appointment was submitted by
the President of the Philippines to the Commission on Appointments "for confirmation."
The ponencia says that the appointment did not need any confirmation, being the sole act of the
President under the Mison ruling. That would have settled the question quite conclusively, but the
opinion goes on to argue another justification that I for one find unnecessary, not to say untenable. I
sense here a palpable effort to bolster Mison because of the apprehension that it is falling apart.
Of course, there was no vacancy when the nomination was made on 14 January 1989. There is no
question that the petitioner was still validly holding the office by virtue of her ad interim appointment
thereto on 17 December 1988. The nomination made later was unnecessary because the ad
interim appointment was still effective. When the Commission on Appointments sent the petitioner
the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain data and
inviting her to appear before it, it was acting not on the nomination but on the ad
interim appointment. What was disapproved was the ad interim appointment, not the nomination.
The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best, it is
important only as an affirmation of the President's acknowledgment that the Chairman of the
Commission on Human Rights must be confirmed under Article VII, Section 16 of the Constitution.
It does not follow, of course, that simply because the President of the Philippines has changed her
mind, and with the expressed support of the Commission on Appointments, we should docilely
submit and reverse Mison. That is not how democracy works. The Court is independent. I do
suggest, however, that the majority could have erred in that case and that the least we can do now is
to take a more careful look at the decision. Let us check our bearings to make sure we have not
gone astray. That is all I ask

I repeat my view that the Chairman of the Commission on Human Rights is subject to confirmation
by the Commission on Appointments, for the reasons stated in my dissent in Mison Accordingly, I
vote to DENY the petition.
GRIO-AQUINO, J.: dissenting:
I believe that the appointments of the chairman and the members of the Commission on Human
Rights by the President require review and confirmation by the Commission on Appointments in view
of the following provision of Section 16, Article VII of the 1987 Constitution:
SEC. 16. 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 of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution....
In my view, the "other officers" whose appointments are vested in the President in the Constitution
are theconstitutional officers, meaning those who hold offices created under the Constitution, and
whose appointments are not otherwise provided for in the Charter. Those constitutional officers are
the chairmen and members of the Constitutional Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IXD), and the Commission on Human Rights (Sec. 17, XIII). These constitutional commissions are,
without excaption, declared to be "independent," but while in the case of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, the 1987 Constitution
expressly provides that "the Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and
Sec. 1[2], Art. IX-D), no such clause is found in Section 17, Article VIII creating the Commission on
Human Rights. Its absence, however, does not detract from, or diminish, the President's power to
appoint the Chairman and Commissioners of the said Commission. The source of that power is the
first sentence of Section 16, Article VII of the Constitution for:
(1) the Commission on Human Rights is an office created by the Constitution, and
(2) the appointment of the Chairman and Commissioners thereof is vested in the President by the
Constitution.
Therefore, the said appointments shall be made by the President with the consent of the
Commission on Appointments, as provided in Section 16, Article VII of the Constitution.
It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirm appointments made by the President is a "derogation of the
Chief Executive's appointing power." That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic form of government provided for in our
Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and President
Vicente G. Sinco:
The function of confirming appointments is part of the power of appointment itself. It
is, therefore, executive rather than legislative in nature. In giving this power to an
organ of the legislative department, the Constitution merely provides a detail in the

scheme of checks and balances between the executive and legislative organs of the
government. (Phil. Political Law by Sinco, 11th ed., p. 266).
WHEREFORE, I vote to dismiss the petition.
Medialdea, J., dissenting:

Republic of the Philippines

Supreme Court
Manila

EN BANC
ARTURO M. DE CASTRO,
Petitioner,

G. R. No. 191002

- versus JUDICIAL AND BAR COUNCIL


(JBC) and PRESIDENT GLORIA
MACAPAGAL ARROYO,
Respondents.
x-----------------------x
JAIME N. SORIANO,
Petitioner,

G.R. No. 191032

- versus JUDICIAL AND BAR COUNCIL


(JBC),
Respondent.
x-----------------------x
PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA),
Petitioner,
- versus JUDICIAL AND BAR COUNCIL
(JBC),
Respondent.
x-----------------------x

G.R. No. 191057

IN RE APPLICABILITY OF
SECTION 15, ARTICLE VII OF
THE CONSTITUTION TO
APPOINTMENTS TO THE
JUDICIARY,
ESTELITO P. MENDOZA,
Petitioner,
x-----------------------x
JOHN G. PERALTA,
Petitioner,
- versus JUDICIAL AND BAR COUNCIL
(JBC).
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - -x
PETER IRVING CORVERA;
CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLES
LAWYERS;
MARLOU B. UBANO;
INTEGRATED BAR OF THE
PHILIPPINES-DAVAO DEL SUR
CHAPTER, represented by its
Immediate Past President, ATTY.
ISRAELITO P. TORREON, and
the latter in his own personal
capacity as a MEMBER of the
PHILIPPINE BAR;
MITCHELL JOHN L. BOISER;
BAGONG ALYANSANG BAYAN

A.M. No. 10-2-5-SC

G.R. No. 191149

(BAYAN) CHAIRMAN DR.


CAROLINA P. ARAULLO;
BAYAN SECRETARY GENERAL
RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND
GAITE; KALIPUNAN NG
DAMAYANG MAHIHIRAP
(KADAMAY) SECRETARY
GENERAL GLORIA ARELLANO;
ALYANSA NG NAGKAKAISANG
KABATAAN NG SAMBAYANAN
PARA SA KAUNLARAN
(ANAKBAYAN) CHAIRMAN
KEN LEONARD RAMOS; TAYO
ANG PAG-ASA CONVENOR
ALVIN PETERS; LEAGUE OF
FILIPINO STUDENTS (LFS)
CHAIRMAN JAMES MARK
TERRY LACUANAN RIDON;
NATIONAL UNION OF
STUDENTS OF THE
PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN
RECEDES; COLLEGE EDITORS
GUILD OF THE PHILIPPINES
(CEGP) CHAIRMAN VIJAE
ALQUISOLA; and STUDENT
CHRISTIAN MOVEMENT OF
THE PHILIPPINES (SCMP)
CHAIRMAN MA. CRISTINA
ANGELA GUEVARRA;
WALDEN F. BELLO and
LORETTA ANN P. ROSALES;

WOMEN TRIAL LAWYERS


ORGANIZATION OF THE
PHILIPPINES, represented by
YOLANDA QUISUMBINGJAVELLANA; BELLEZA
ALOJADO DEMAISIP;
TERESITA GANDIONCOOLEDAN; MA. VERENA
KASILAG-VILLANUEVA;
MARILYN STA. ROMANA;
LEONILA DE JESUS; and
GUINEVERE DE LEON.
Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - - -x
ATTY. AMADOR Z.
TOLENTINO, JR., (IBP
GovernorSouthern Luzon), and
ATTY. ROLAND B. INTING
(IBP GovernorEastern Visayas),
Petitioners,

G.R. No. 191342

- versus JUDICIAL AND BAR COUNCIL


(JBC),
Respondent.
x-----------------------x
PHILIPPINE BAR
ASSOCIATION, INC.,
Petitioner,

- versus -

G.R. No. 191420


Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,

ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
JUDICIAL AND BAR COUNCIL
Promulgated:
and HER EXCELLENCY
March 17, 2010
GLORIA MACAPAGALARROYO,
Respondents.
x-----------------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17,
2010 occurs just days after the coming presidential elections on May 10, 2010.
Even before the event actually happens, it is giving rise to many legal dilemmas.
May the incumbent President appoint his successor, considering that Section 15,
Article VII (Executive Department) of the Constitution prohibits the President or
Acting President from making appointments within two months immediately
before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein
will prejudice public service or endanger public safety? What is the relevance of
Section 4 (1), Article VIII (Judicial Department) of the Constitution, which
provides that any vacancy in the Supreme Court shall be filled within 90 days from
the occurrence thereof, to the matter of the appointment of his successor? May the
Judicial and Bar Council (JBC) resume the process of screening the candidates
nominated or being considered to succeed Chief Justice Puno, and submit the list
of nominees to the incumbent President even during the period of the prohibition
under Section 15, Article VII? Does mandamus lie to compel the submission of the
shortlist of nominees by the JBC?
Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively


commenced G.R. No. 191002[1] and G.R. No. 191149[2] as special civil actions
for certiorariand mandamus, praying that the JBC be compelled to submit to the
incumbent President the list of at least three nominees for the position of the next
Chief Justice.
In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition,
proposes to prevent the JBC from conducting its search, selection and nomination
proceedings for the position of Chief Justice.
In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine
Constitution Association (PHILCONSA) wants the JBC to submit its list of
nominees for the position of Chief Justice to be vacated by Chief Justice Puno
upon his retirement on May 17, 2010, because the incumbent President is not
covered by the prohibition that applies only to appointments in the Executive
Department.
In Administrative Matter No. 10-2-5-SC, [5] petitioner Estelito M. Mendoza, a
former Solicitor General, seeks a ruling from the Court for the guidance of the JBC
on whether Section 15, Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the
petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting,
Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern
Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of
nominees for the position of Chief Justice to the President for appointment during
the period provided for in Section 15, Article VII.
All the petitions now before the Court pose as the principal legal question whether
the incumbent President can appoint the successor of Chief Justice Puno upon his
retirement. That question is undoubtedly impressed with transcendental importance
to the Nation, because the appointment of the Chief Justice is any Presidents most
important appointment.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of
Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional

Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively (Valenzuela),[7] by which the Court held that Section 15, Article VII
prohibited the exercise by the President of the power to appoint to judicial
positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions on the
issue expressed by legal luminaries one side holds that the incumbent President is
prohibited from making appointments within two months immediately before the
coming presidential elections and until the end of her term of office as President on
June 30, 2010, while the other insists that the prohibition applies only to
appointments to executive positions that may influence the election and, anyway,
paramount national interest justifies the appointment of a Chief Justice during the
election ban has impelled the JBC to defer the decision to whom to send its list of
at least three nominees, whether to the incumbent President or to her successor.
[8]
He opines that the JBC is thereby arrogating unto itself the judicial function that
is not conferred upon it by the Constitution, which has limited it to the task of
recommending appointees to the Judiciary, but has not empowered it to finally
resolve constitutional questions, which is the power vested only in the Supreme
Court under the Constitution. As such, he contends that the JBC acted with grave
abuse of discretion in deferring the submission of the list of nominees to the
President; and that a final and definitive resolution of the constitutional questions
raised above would diffuse (sic) the tension in the legal community that would go a
long way to keep and maintain stability in the judiciary and the political system.[9]
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave
abuse of discretion amounting to lack or excess of its jurisdiction when it resolved
unanimously on January 18, 2010 to open the search, nomination, and selection
process for the position of Chief Justice to succeed Chief Justice Puno, because the
appointing authority for the position of Chief Justice is the Supreme Court itself,
the Presidents authority being limited to the appointment of the Members of the
Supreme Court. Hence, the JBC should not intervene in the process, unless a
nominee is not yet a Member of the Supreme Court.[10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that
unorthodox and exceptional circumstances spawned by the discordant

interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in


relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have bred a frenzied
inflammatory legal debate on the constitutional provisions mentioned that has
divided the bench and the bar and the general public as well, because of its
dimensional impact to the nation and the people, thereby fashioning transcendental
questions or issues affecting the JBCs proper exercise of its principal function of
recommending appointees to the Judiciary by submitting only to the President (not
to the next President) a list of at least three nominees prepared by the Judicial and
Bar Council for every vacancy from which the members of the Supreme Court and
judges of the lower courts may be appointed. [11] PHILCONSA further believes and
submits that now is the time to revisit and review Valenzuela, the strange and
exotic Decision of the Court en banc.[12]
Peralta states in his petition in G.R. No. 191149 that mandamus can compel
the JBC to immediately transmit to the President, within a reasonable time, its
nomination list for the position of chief justice upon the mandatory retirement of
Chief Justice Reynato S. Puno, in compliance with its mandated duty under the
Constitution in the event that the Court resolves that the President can appoint a
Chief Justice even during the election ban under Section 15, Article VII of the
Constitution.[13]
The petitioners in G.R. No. 191342 insist that there is an actual controversy,
considering that the JBC has initiated the process of receiving applications for the
position of Chief Justice and has in fact begun the evaluation process for the
applications to the position, and is perilously near completing the nomination
process and coming up with a list of nominees for submission to the President,
entering into the period of the ban on midnight appointments on March 10, 2010,
which only highlights the pressing and compelling need for a writ of prohibition to
enjoin such alleged ministerial function of submitting the list, especially if it will
be cone within the period of the ban on midnight appointments.[14]
Antecedents
These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or
seven days after the presidential election. Under Section 4(1), in relation to Section

9, Article VIII, that vacancy shall be filled within ninety days from the occurrence
thereof from a list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy.
On December 22, 2009, Congressman Matias V. Defensor, an ex
officio member of the JBC, addressed a letter to the JBC, requesting that the
process for nominations to the office of the Chief Justice be commenced
immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,[15] which reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to
start the process of filling up the position of Chief Justice to be vacated on May
17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato
S. Puno.
It will publish the opening of the position for applications or
recommendations; deliberate on the list of candidates; publish the names of
candidates; accept comments on or opposition to the applications; conduct public
interviews of candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in
the light of the Constitution, existing laws and jurisprudence, the JBC welcomes
and will consider all views on the matter.
18 January 2010.

(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose its announcement dated January
20, 2010,[16] viz:

The Judicial and Bar Council (JBC) announces the opening for application
or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME
COURT, which will be vacated on 17 May 2010 upon the retirement of the
incumbent Chief Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not
later than 4 February 2010 (Thursday) to the JBC Secretariat xxx:

The announcement was published on January 20, 2010 in the Philippine


Daily Inquirer and The Philippine Star.[17]
Conformably with its existing practice, the JBC automatically considered for the
position of Chief Justice the five most senior of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona;
Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco,
Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two
declined their nomination through letters dated January 18, 2010 and January 25,
2010, respectively.[18]
Others either applied or were nominated. Victor Fernandez, the retired Deputy
Ombudsman for Luzon, applied, but later formally withdrew his name from
consideration through his letter dated February 8, 2010. Candidates who accepted
their nominations without conditions were Associate Justice Renato C. Corona;
Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D.
Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates
who accepted their nominations with conditions were Associate Justice Antonio T.
Carpio and Associate Justice Conchita Carpio Morales.[19] Declining their
nominations were Atty. Henry Villarica (via telephone conversation with the
Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller,
Jr. (via telephone conversation with the Executive Officer of the JBC on February
8, 2010).[20]
The JBC excluded from consideration former RTC Judge Florentino Floro (for
failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis
Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office
of the Ombudsman).[21]

In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite the public to file their
sworn complaint, written report, or opposition, if any, not later than February 22,
2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice
Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion,
and Associate Justice Sandoval. The announcement came out in the Philippine
Daily Inquirer and The Philippine Star issues of February 13, 2010.[22]
Issues
Although it has already begun the process for the filling of the position of
Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when
to submit to the President its list of nominees for the position due to the
controversy now before us being yet unresolved. In the meanwhile, time is
marching in quick step towards May 17, 2010 when the vacancy occurs upon the
retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal
luminaries, but also among non-legal quarters, and brought out highly disparate
opinions on whether the incumbent President can appoint the next Chief Justice or
not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments
of two judges of the Regional Trial Court, the Court addressed this issue now
before us as an administrative matter to avoid any possible polemics concerning
the matter, but he opines that the polemics leading to Valenzuela would be
miniscule [sic] compared to the polemics that have now erupted in regard to the
current controversy, and that unless put to a halt, and this may only be achieved by
a ruling from the Court, the integrity of the process and the credibility of whoever
is appointed to the position of Chief Justice, may irreparably be impaired.[23]
Accordingly, we reframe the issues as submitted by each petitioner in the order of
the chronological filing of their petitions.

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the
constitutional question of whether the incumbent President can
appoint a Chief Justice during the election ban period?
b. Does the incumbent President have the power and authority to
appoint during the election ban the successor of Chief Justice Puno
when he vacates the position of Chief Justice on his retirement
on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme
Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment under Section
15, Article VII of the Constitution applicable only to positions in
the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the
Constitution also applies to members of the Judiciary, may such
appointments be excepted because they are impressed with public
interest or are demanded by the exigencies of public service,
thereby justifying these appointments during the period of
prohibition?
c. Does the JBC have the authority to decide whether or not to include
and submit the names of nominees who manifested interest to be
nominated for the position of Chief Justice on the understanding
that his/her nomination will be submitted to the next President in
view of the prohibition against presidential appointments from
March 11, 2010 until June 30, 2010?
A. M. No. 10-2-5-SC

a. Does Section 15, Article VII of the Constitution apply to


appointments to positions in the Judiciary under Section 9, Article
VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the
Judiciary after March 10, 2010, including that for the position of
Chief Justice after Chief Justice Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the
short list to President Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to
the incumbent President without committing a grave violation of
the Constitution and jurisprudence prohibiting the incumbent
President from making midnight appointments two months
immediately preceding the next presidential elections until the end
of her term?
b. Is any act performed by the JBC, including the vetting of the
candidates for the position of Chief Justice, constitutionally invalid
in view of the JBCs illegal composition allowing each member
from the Senate and the House of Representatives to have one vote
each?
On February 16, 2010, the Court directed the JBC and the Office of the
Solicitor General (OSG) to comment on the consolidated petitions, except that
filed inG.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting therein that
the next stage of the process for the selection of the nominees for the position of
Chief Justice would be the public interview of the candidates and the preparation
of the short list of candidates, including the interview of the constitutional experts,
as may be needed.[24] It stated:[25]

Likewise, the JBC has yet to take a position on when to submit the
shortlist to the proper appointing authority, in light of Section 4 (1),
Article VIII of the Constitution, which provides that vacancy in the
Supreme Court shall be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VII of the Constitution concerning the ban on
Presidential appointments two (2) months immediately before the next
presidential elections and up to the end of his term and Section 261 (g),
Article XXII of the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution,
the JBC will be guided by its decision in these consolidated Petitions and
Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially
stating that the incumbent President can appoint the successor of Chief Justice
Puno upon his retirement by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the
JBC from performing its principal function under the Constitution to recommend
appointees in the Judiciary; (b) the JBCs function to recommend is a continuing
process, which does not begin with each vacancy or end with each nomination,
because the goal is to submit the list of nominees to Malacaang on the very day the
vacancy arises;[26] the JBC was thus acting within its jurisdiction when it
commenced and set in motion the process of selecting the nominees to be
submitted to the President for the position of Chief Justice to be vacated by Chief
Justice Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the
President, who has the power to appoint the Chief Justice, is incorrect, and
proceeds from his misinterpretation of the phrase members of the Supreme Court
found in Section 9, Article VIII of the Constitution as referring only to the
Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list of nominees to the
President, considering that its duty to prepare the list of at least three nominees is
unqualified, and the submission of the list is a ministerial act that the JBC is
mandated to perform under the Constitution; as such, the JBC, the nature of whose
principal function is executive, is not vested with the power to resolve who has the
authority to appoint the next Chief Justice and, therefore, has no discretion to

withhold the list from the President; [29] and (e) a writ of mandamus cannot issue to
compel the JBC to include or exclude particular candidates as nominees,
considering that there is no imperative duty on its part to include in or exclude
from the list particular individuals, but, on the contrary, the JBCs determination of
who it nominates to the President is an exercise of a discretionary duty.[30]
The OSG contends that the incumbent President may appoint the next Chief
Justice, because the prohibition under Section 15, Article VII of the Constitution
does not apply to appointments in the Supreme Court. It argues that any vacancy in
the Supreme Court must be filled within 90 days from its occurrence, pursuant to
Section 4(1), Article VIII of the Constitution; [31] that in their deliberations on the
mandatory period for the appointment of Supreme Court Justices, the framers
neither mentioned nor referred to the ban against midnight appointments, or its
effects on such period, or vice versa;[32] that had the framers intended the
prohibition to apply to Supreme Court appointments, they could have easily
expressly stated so in the Constitution, which explains why the prohibition found
in Article VII (Executive Department) was not written in Article VIII (Judicial
Department); and that the framers also incorporated in Article VIII ample
restrictions or limitations on the Presidents power to appoint members of the
Supreme Court to ensure its independence from political vicissitudes and its
insulation from political pressures,[33]such as stringent qualifications for the
positions, the establishment of the JBC, the specified period within which the
President shall appoint a Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC
Judges, the situation now refers to the appointment of the next Chief Justice to
which the prohibition does not apply; that, at any rate, Valenzuela even recognized
that there might be the imperative need for an appointment during the period of the
ban, like when the membership of the Supreme Court should be so reduced that it
will have no quorum, or should the voting on a particular important question
requiring expeditious resolution be divided;[34] and that Valenzuela also recognized
that the filling of vacancies in the Judiciary is undoubtedly in the public interest,
most especially if there is any compelling reason to justify the making of the
appointments during the period of the prohibition.[35]

Lastly, the OSG urges that there are now undeniably compelling reasons for
the incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of
cases involving sensitive political issues is quite expected;[36] (b) the Court acts as
the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge
of all contests relating to the election, returns, and qualifications of the President
and Vice President and, as such, has the power to correct manifest errors on the
statement of votes (SOV) and certificates of canvass (COC); [37] (c) if history has
shown that during ordinary times the Chief Justice was appointed immediately
upon the occurrence of the vacancy, from the time of the effectivity of the
Constitution, there is now even more reason to appoint the next Chief Justice
immediately upon the retirement of Chief Justice Puno; [38] and (d) should the next
Chief Justice come from among the incumbent Associate Justices of the Supreme
Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start
the selection process for the filling up of the vacancy in accordance with the
constitutional mandate.[39]
On March 9, 2010, the Court admitted the following comments/oppositionsin-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty.


Peter Irving Corvera (Corvera);[40]
(b) The opposition-in-intervention dated February 22, 2010 of Atty.
Christian Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty.
Alfonso V. Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated March 1, 2010 of
the National Union of Peoples Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty.
Marlou B. Ubano (Ubano);

(f) The opposition-in-intervention dated February 25, 2010 of


Integrated Bar of the Philippines-Davao del Sur Chapter and its
Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao
del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty.
Mitchell John L. Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention dated
February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo;
BAYAN Secretary General Renato M. Reyes, Jr.; Confederation
for Unity, Recognition and Advancement of Government
Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan
ng Damayang Mahihirap (KADAMAY) Secretary General Gloria
Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para
sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos;
Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino
Students (LFS) Chairman James Mark Terry Lacuanan Ridon;
National Union of Students of the Philippines (NUSP) Chairman
Einstein Recedes, College Editors Guild of the Philippines (CEGP)
Chairman Vijae Alquisola; and Student Christian Movement of the
Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra
(BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of Walden F.
Bello and Loretta Ann P. Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention dated March
4, 2010 of the Women Trial Lawyers Organization of the
Philippines (WTLOP), represented by Atty. Yolanda QuisumbingJavellana; Atty. Belleza Alojado Demaisip; Atty. Teresita
Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty.
Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere
de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL
take the position that De Castros petition was bereft of any basis, because under
Section 15, Article VII, the outgoing President is constitutionally banned from

making any appointments from March 10, 2010 until June 30, 2010, including the
appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie
to compel the JBC to submit the list of nominees to the outgoing President if the
constitutional prohibition is already in effect. Tan adds that the prohibition against
midnight appointments was applied by the Court to the appointments to the
Judiciary made by then President Ramos, with the Court holding that the duty of
the President to fill the vacancies within 90 days from occurrence of the vacancies
(for the Supreme Court) or from the submission of the list (for all other courts) was
not an excuse to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et
al. oppose the insistence that Valenzuela recognizes the possibility that the
President may appoint the next Chief Justice if exigent circumstances warrant the
appointment, because that recognition is obiter dictum; and aver that the absence of
a Chief Justice or even an Associate Justice does not cause epic damage or absolute
disruption or paralysis in the operations of the Judiciary. They insist that even
without the successor of Chief Justice Puno being appointed by the incumbent
President, the Court is allowed to sit and adjudge en banc or in divisions of three,
five or seven members at its discretion; that a full membership of the Court is not
necessary; that petitioner De Castros fears are unfounded and baseless, being based
on a mere possibility, the occurrence of which is entirely unsure; that it is not in the
national interest to have a Chief Justice whose appointment is unconstitutional and,
therefore, void; and that such a situation will create a crisis in the judicial system
and will worsen an already vulnerable political situation.
ice is imperative for the stability of the judicial system and the political situation in
the country when the election-related questions reach the Court as false, because there
is an existing law on filling the void brought about by a vacancy in the office of Chief
Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been
repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or
an acting Chief Justice is not anathema to judicial independence; that the designation
of an acting Chief Justice is not only provided for by law, but is also dictated by
practical necessity; that the practice was intended to be enshrined in the 1987
Constitution, but the Commissioners decided not to write it in the Constitution on
account of the settled practice; that the practice was followed under the 1987
Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B.
Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief

Justice prior to his official appointment as Chief Justice; that said filling up of a
vacancy in the office of the Chief Justice was acknowledged and even used by
analogy in the case of the vacancy of the Chairman of the Commission on Elections,
per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has
shown that this rule of succession has been repeatedly observed and has become a part
of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that


the Omnibus Election Code penalizes as an election offense the act of any
government official who appoints, promotes, or gives any increase in salary or
remuneration or privilege to any government official or employee during the
period of 45 days before a regular election; that the provision covers all appointing
heads, officials, and officers of a government office, agency or instrumentality,
including the President; that for the incumbent President to appoint the next Chief
Justice upon the retirement of Chief Justice Puno, or during the period of the ban
under theOmnibus Election Code, constitutes an election offense; that even an
appointment of the next Chief Justice prior to the election ban is fundamentally
invalid and without effect because there can be no appointment until a vacancy
occurs; and that the vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castros prayer to compel the submission of
nominees by the JBC to the incumbent President is off-tangent because the position
of Chief Justice is still not vacant; that to speak of a list, much more a submission
of such list, before a vacancy occurs is glaringly premature; that the proposed
advance appointment by the incumbent President of the next Chief Justice will be
unconstitutional; and that no list of nominees can be submitted by the JBC if there
is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no
distinction between the kinds of appointments made by the President; and that the
Court, in Valenzuela, ruled that the appointments by the President of the two judges
during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987
Constitution does not apply only to the appointments in the Executive Department,

but also to judicial appointments, contrary to the submission of PHILCONSA; that


Section 15 does not distinguish; and that Valenzuela already interpreted the
prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Sorianos contention that the
power to appoint the Chief Justice is vested, not in the President, but in the
Supreme Court, is utterly baseless, because the Chief Justice is also a Member of
the Supreme Court as contemplated under Section 9, Article VIII; and that, at any
rate, the term members was interpreted in Vargas v. Rillaroza (G.R. No. L-1612,
February 26, 1948) to refer to the Chief Justice and the Associate Justices of the
Supreme Court; that PHILCONSAs prayer that the Court pass a resolution
declaring that persons who manifest their interest as nominees, but with conditions,
shall not be considered nominees by the JBC is diametrically opposed to the
arguments in the body of its petition; that such glaring inconsistency between the
allegations in the body and the relief prayed for highlights the lack of merit of
PHILCONSAs petition; that the role of the JBC cannot be separated from the
constitutional prohibition on the President; and that the Court must direct the JBC
to follow the rule of law, that is, to submit the list of nominees only to the next
duly elected President after the period of the constitutional ban against midnight
appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC because it is neither a
judicial nor a quasi-judicial body has no duty under the Constitution to resolve the
question of whether the incumbent President can appoint a Chief Justice during the
period of prohibition; that even if the JBC has already come up with a short list, it
still has to bow to the strict limitations under Section 15, Article VII; that should
the JBC defer submission of the list, it is not arrogating unto itself a judicial
function, but simply respecting the clear mandate of the Constitution; and that the
application of the general rule in Section 15, Article VII to the Judiciary does not
violate the principle of separation of powers, because said provision is an
exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of
nominating appointees to the Supreme Court is purely ministerial and does not
involve the exercise of judgment; that there can be no default on the part of the
JBC in submitting the list of nominees to the President, considering that the call for
applications only begins from the occurrence of the vacancy in the Supreme Court;

and that the commencement of the process of screening of applicants to fill the
vacancy in the office of the Chief Justice only begins from the retirement on May
17, 2010, for, prior to this date, there is no definite legal basis for any party to
claim that the submission or non-submission of the list of nominees to the
President by the JBC is a matter of right under law.
The main question presented in all the filings herein because it involves two
seemingly conflicting provisions of the Constitution imperatively demands the
attention and resolution of this Court, the only authority that can resolve the
question definitively and finally. The imperative demand rests on the ever-present
need,first, to safeguard the independence, reputation, and integrity of the entire
Judiciary, particularly this Court, an institution that has been unnecessarily dragged
into the harsh polemics brought on by the controversy; second, to settle once and
for all the doubt about an outgoing Presidents power to appoint to the Judiciary
within the long period starting two months before the presidential elections until
the end of the presidential term; and third, to set a definite guideline for the JBC to
follow in the discharge of its primary office of screening and nominating qualified
persons for appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners
have locus standi.
Black defines locus standi as a right of appearance in a court of justice on a
given question.[41] In public or constitutional litigations, the Court is often burdened
with the determination of the locus standi of the petitioners due to the ever-present
need to regulate the invocation of the intervention of the Court to correct any
official action or policy in order to avoid obstructing the efficient functioning of
public officials and offices involved in public service. It is required, therefore, that
the petitioner must have a personal stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]

The question on legal standing is whether such parties have alleged


such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult constitutional
questions.[43] Accordingly, it has been held that the interest of a person
assailing the constitutionality of a statute must be direct and personal. He
must be able to show, not only that the law or any government act is invalid,
but also that he sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers thereby
in some indefinite way. It must appear that the person complaining has been
or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.[44]

It is true that as early as in 1937, in People v. Vera,[45] the Court adopted


the direct injury test for determining whether a petitioner in a public action
had locus standi. There, the Court held that the person who would assail the
validity of a statute must have a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result. Vera was followed
in Custodio v. President of the Senate,[46] Manila Race Horse Trainers Association
v. De la Fuente,[47] Anti-Chinese League of the Philippines v. Felix, [48] and Pascual
v. Secretary of Public Works.[49]
Yet, the Court has also held that the requirement of locus standi, being a
mere procedural technicality, can be waived by the Court in the exercise of its
discretion. For instance, in 1949, in Araneta v. Dinglasan,[50] the Court liberalized
the approach when the cases had transcendental importance. Some notable
controversies whose petitioners did not pass the direct injury test were allowed to
be treated in the same way as in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to
resolve the issues raised by the petition due to their far-reaching implications,even
if the petitioner had no personality to file the suit. The liberal approach of Aquino
v.
Commission
on
Elections has
been
adopted
in
several notable cases,permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws,
regulations, and rulings.[53]

However, the assertion of a public right as a predicate for challenging a


supposedly illegal or unconstitutional executive or legislative action rests on the
theory that the petitioner represents the public in general. Although such petitioner
may not be as adversely affected by the action complained against as are others, it
is enough that he sufficiently demonstrates in his petition that he is entitled to
protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as
a citizen or taxpayer to gain locus standi. That is not surprising, for even if the
issue may appear to concern only the public in general, such capacities nonetheless
equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,
[54]
the Court aptly explains why:
Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,[55] where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:[56] In matter of mere public right,
howeverthe people are the real partiesIt is at least the right, if not the duty, of
every citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied. With respect to
taxpayers suits, Terr v. Jordan[57] held that the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to
his injury cannot be denied.[58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and
Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on
behalf of the public who are directly affected by the issue of the appointment of the
next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with
Soriano averring that he is affected by the continuing proceedings in the JBC,
which involve unnecessary, if not, illegal disbursement of public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit organization
existing under the law for the purpose of defending, protecting, and preserving the
Constitution and promoting its growth and flowering. It also alleges that the Court

has recognized its legal standing to file cases on constitutional issues in several
cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the
Philippines, a member of the Philippine Bar engaged in the active practice of law,
and a former Solicitor General, former Minister of Justice, former Member of the
Interim Batasang Pambansa and the Regular Batasang Pambansa, and former
member of the Faculty of the College of Law of the University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar
of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that
they have the legal standing to enjoin the submission of the list of nominees by the
JBC to the President, for [a]n adjudication of the proper interpretation and
application of the constitutional ban on midnight appointments with regard to
respondent JBCs function in submitting the list of nominees is well within the
concern of petitioners, who are duty bound to ensure that obedience and respect for
the Constitution is upheld, most especially by government offices, such as
respondent JBC, who are specifically tasked to perform crucial functions in the
whole scheme of our democratic institution. They further allege that, reposed in
them as members of the Bar, is a clear legal interest in the process of selecting the
members of the Supreme Court, and in the selection of the Chief Justice,
considering that the person appointed becomes a member of the body that has
constitutional supervision and authority over them and other members of the legal
profession.[61]
The Court rules that the petitioners have each demonstrated adequate interest
in the outcome of the controversy as to vest them with the requisite locus
standi.The issues before us are of transcendental importance to the people as a
whole, and to the petitioners in particular. Indeed, the issues affect everyone
(including the petitioners), regardless of ones personal interest in life, because they
concern that great doubt about the authority of the incumbent President to appoint
not only the successor of the retiring incumbent Chief Justice, but also others who
may serve in the Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement
of legal standing in favor of any petitioner when the matter involved has

transcendental importance, or otherwise requires a liberalization of the


requirement.[62]
Yet, if any doubt still lingers about the locus standi of any petitioner, we
dispel the doubt now in order to remove any obstacle or obstruction to the
resolution of the essential issue squarely presented herein. We are not to shirk from
discharging our solemn duty by reason alone of an obstacle more technical than
otherwise. InAgan, Jr. v. Philippine International Air Terminals Co., Inc .,[63] we
pointed out: Standing is a peculiar concept in constitutional law because in some
cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public interest. But even if, strictly
speaking, the petitioners are not covered by the definition, it is still within the wide
discretion of the Court to waive the requirement and so remove the impediment to
its addressing and resolving the serious constitutional questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is
appropriate or ripe for adjudication, considering that although the selection process
commenced by the JBC is going on, there is yet no final list of nominees; hence,
there is no imminent controversy as to whether such list must be submitted to the
incumbent President, or reserved for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is
ripe for judicial determination, pointing out that petitioner De Castro has not even
shown that the JBC has already completed its selection process and is now ready to
submit the list to the incumbent President; and that petitioner De Castro is merely
presenting a hypothetical scenario that is clearly not sufficient for the Court to
exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castros petition rests
on an overbroad and vague allegation of political tension, which is insufficient
basis for the Court to exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere
advisory opinion on what the JBC and the President should do, and are not
invoking any issues that are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and
no assertion of opposite legal claims in any of the petitions; that PHILCONSA
does not allege any action taken by the JBC, but simply avers that the conditional
manifestations of two Members of the Court, accented by the divided opinions and
interpretations of legal experts, or associations of lawyers and law students on the
issues published in the daily newspapers are matters of paramount and
transcendental importance to the bench, bar and general public; that PHILCONSA
fails not only to cite any legal duty or allege any failure to perform the duty, but
also to indicate what specific action should be done by the JBC; that Mendoza does
not even attempt to portray the matter as a controversy or conflict of rights, but,
instead, prays that the Court should rule for the guidance of the JBC; that the fact
that the Court supervises the JBC does not automatically imply that the Court can
rule on the issues presented in the Mendoza petition, because supervision involves
oversight, which means that the subordinate officer or body must first act, and if
such action is not in accordance with prescribed rules, then, and only then, may the
person exercising oversight order the action to be redone to conform to the
prescribed rules; that the Mendoza petition does not allege that the JBC has
performed a specific act susceptible to correction for being illegal or
unconstitutional; and that the Mendoza petition asks the Court to issue an advisory
ruling, not to exercise its power of supervision to correct a wrong act by the JBC,
but to declare the state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe
for judicial determination. The reality is that the JBC already commenced the
proceedings for the selection of the nominees to be included in a short list to be
submitted to the President for consideration of which of them will succeed Chief
Justice Puno as the next Chief Justice. Although the position is not yet vacant, the
fact that the JBC began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the list of nominees to the
incumbent outgoing President or to the next President, makes the situation ripe for
judicial determination, because the next steps are the public interview of the

candidates, the preparation of the short list of candidates, and the interview of
constitutional experts, as may be needed.
A part of the question to be reviewed by the Court is whether the JBC
properly initiated the process, there being an insistence from some of the
oppositors-intervenors that the JBC could only do so once the vacancy has
occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC
may resume its process until the short list is prepared, in view of the provision of
Section 4(1), Article VIII, which unqualifiedly requires the President to appoint
one from the short list to fill the vacancy in the Supreme Court (be it the Chief
Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be
doubted. The challenges to the authority of the JBC to open the process of
nomination and to continue the process until the submission of the list of
nominees; the insistence of some of the petitioners to compel the JBC
through mandamus to submit the short list to the incumbent President; the counterinsistence of the intervenors to prohibit the JBC from submitting the short list to
the incumbent President on the ground that said list should be submitted instead to
the next President; the strong position that the incumbent President is already
prohibited under Section 15, Article VII from making any appointments, including
those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the
contrary position that the incumbent President is not so prohibited are only some of
the real issues for determination. All such issues establish the ripeness of the
controversy, considering that for some the short list must be submitted before the
vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction,
or a merely hypothetical exercise. The resolution of the controversy will surely
settle with finality the nagging questions that are preventing the JBC from moving
on with the process that it already began, or that are reasons persuading the JBC to
desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order
for the principal issue to ripe for judicial determination by the Court. It is enough
that one alleges conduct arguably affected with a constitutional interest, but
seemingly proscribed by the Constitution. A reasonable certainty of the occurrence
of the perceived threat to a constitutional interest is sufficient to afford a basis for

bringing a challenge, provided the Court has sufficient facts before it to enable it to
intelligently adjudicate the issues.[65] Herein, the facts are not in doubt, for only
legal issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.


The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential elections
and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public
safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:


Section 4. (1). The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in division of
three, five, or seven Members. Any vacancy shall be filled within ninety days
from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano,


Tolentino and Inting, submit that the incumbent President can appoint the
successor of Chief Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential appointments under Section 15,
Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.

First. The records of the deliberations of the Constitutional Commission


reveal that the framers devoted time to meticulously drafting, styling, and
arranging the Constitution. Such meticulousness indicates that the organization and
arrangement of the provisions of the Constitution were not arbitrarily or
whimsically done by the framers, but purposely made to reflect their intention and
manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the
allocation of the awesome powers of government among the three great
departments, the Legislative (Article VI), the Executive (Article VII), and the
Judicial Departments (Article VIII). The arrangement was a true recognition of the
principle of separation of powers that underlies the political structure, as
Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the
Court) explained in his sponsorship speech:
We have in the political part of this Constitution opted for the separation of
powers in government because we believe that the only way to protect freedom
and liberty is to separate and divide the awesome powers of government. Hence,
we return to the separation of powers doctrine and the legislative, executive and
judicial departments.[66]

As can be seen, Article VII is devoted to the Executive Department, and,


among others, it lists the powers vested by the Constitution in the President. The
presidential power of appointment is dealt with in Sections 14, 15 and 16 of the
Article.
Article VIII is dedicated to the Judicial Department and defines the duties
and qualifications of Members of the Supreme Court, among others. Section 4(1)
and Section 9 of this Article are the provisions specifically providing for the
appointment of Supreme Court Justices. In particular, Section 9 states that the
appointment of Supreme Court Justices can only be made by the President upon
the submission of a list of at least three nominees by the JBC; Section 4(1) of the
Article mandates the President to fill the vacancy within 90 days from the
occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could have
explicitly done so. They could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the prohibition made
explicit in Section 15, Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition
against the President or Acting President making appointments within two months
before the next presidential elections and up to the end of the Presidents or Acting
Presidents term does not refer to the Members of the Supreme Court.

Although Valenzuela[67] came to hold that the prohibition covered even


judicial appointments, it cannot be disputed that the Valenzuela dictum did not
firmly rest on the deliberations of the Constitutional Commission. Thereby, the
confirmation made to the JBC by then Senior Associate Justice Florenz D.
Regalado of this Court, a former member of the Constitutional Commission, about
the prohibition not being intended to apply to the appointments to the Judiciary,
which confirmationValenzuela even expressly mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of
Section 4 (1), Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution
discloses that the original proposal was to have an eleven-member Supreme
Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to
fifteen. He also wished to ensure that that number would not be reduced for any
appreciable length of time (even only temporarily), and to this end proposed that
any vacancy must be filled within two months from the date that the vacancy
occurs. His proposal to have a 15-member Court was not initially
adopted. Persisting however in his desire to make certain that the size of the Court
would not be decreased for any substantial period as a result of vacancies, Lerum
proposed the insertion in the provision (anent the Courts membership) of the same
mandate that IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED
WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. He later agreed to
suggestions to make the period three, instead of two, months. As thus amended,

the proposal was approved. As it turned out, however, the Commission ultimately
agreed on a fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a command to fill up any
vacancy therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any
vacancy shall be filled within ninety days (in the last sentence of Section 4 (1) of
Article VIII) contrasts with the prohibition in Section 15, Article VII, which is
couched in stronger negative language - that a President or Acting President shall
not make appointments
The commission later approved a proposal of Commissioner Hilario G.
Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of
Article VIII, the following paragraph: WITH RESPECT TO LOWER COURTS,
THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY
DAYS FROM THE SUBMISSION OF THE LIST (of nominees by the Judicial
and Bar Council to the President). Davide stated that his purpose was to provide a
uniform rule for lower courts. According to him, the 90-day period should be
counted from submission of the list of nominees to the President in view of the
possibility that the President might reject the list submitted to him and the JBC
thus need more time to submit a new one.
On the other hand, Section 15, Article VII - which in effect deprives the
President of his appointing power two months immediately before the next
presidential elections up to the end of his term - was approved without discussion.
[68]

However, the reference to the records of the Constitutional Commission did not
advance or support the result in Valenzuela. Far to the contrary, the records
disclosed the express intent of the framers to enshrine in the Constitution, upon the
initiative of Commissioner Eulogio Lerum, a command [to the President] to fill up
any vacancy therein within 90 days from its occurrence, which
even Valenzuela conceded.[69] The exchanges during deliberations of the
Constitutional Commission onOctober 8, 1986 further show that the filling of a
vacancy in the Supreme Court within the 90-day period was a true mandate for the
President, viz:
MR. DE CASTRO. I understand that our justices now in the Supreme Court,
together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection reads: Any
vacancy shall be filled within ninety days from the occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the
vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that in the
past 30 years, seldom has the Court had a complete complement.[70]

Moreover, the usage in Section 4(1), Article VIII of the word shall an
imperative, operating to impose a duty that may be enforced [71] should not be
disregarded.
Thereby, Sections
4(1)
imposes
on
the
President
the imperative duty to make an appointment of a Member of the Supreme Court
within 90 days from the occurrence of the vacancy. The failure by the President to
do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to
fill the vacancy in the Supreme Court was undoubtedly a special provision to
establish a definite mandate for the President as the appointing power, and cannot
be defeated by mere judicial interpretation in Valenzuela to the effect that Section
15, Article VII prevailed because it was couched in stronger negative language.
Such interpretation even turned out to be conjectural, in light of the records of the
Constitutional Commissions deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted.
According to an authority on statutory construction:[72]
xxx the court should seek to avoid any conflict in the provisions of the
statute by endeavoring to harmonize and reconcile every part so that each shall be
effective. It is not easy to draft a statute, or any other writing for that matter,
which may not in some manner contain conflicting provisions. But what appears
to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly,
each provision was inserted for a definite reason. Often by considering the
enactment in its entirety, what appears to be on its face a conflict may be cleared
up and the provisions reconciled.
Consequently, that construction which will leave every word operative will
be favored over one which leaves some word or provision meaningless because of
inconsistency. But a word should not be given effect, if to do so gives the statute a
meaning contrary to the intent of the legislature. On the other hand, if full effect
cannot be given to the words of a statute, they must be made effective as far as

possible. Nor should the provisions of a statute which are inconsistent be


harmonized at a sacrifice of the legislative intention. It may be that two provisions
are irreconcilable; if so, the one which expresses the intent of the law-makers
should control. And the arbitrary rule has been frequently announced that where
there is an irreconcilable conflict between the different provisions of a statute, the
provision last in order of position will prevail, since it is the latest expression of
the legislative will. Obviously, the rule is subject to deserved criticism. It is
seldom applied, and probably then only where an irreconcilable conflict exists
between different sections of the same act, and after all other means of
ascertaining the meaning of the legislature have been exhausted. Where the
conflict is between two statutes, more may be said in favor of the rules
application, largely because of the principle of implied repeal.

In this connection, PHILCONSAs urging of a revisit and a review


of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express
intent of the Constitutional Commission to have Section 4 (1), Article VIII
stand independently of any other provision, least of all one found in Article VII. It
further ignored that the two provisions had no irreconcilable conflict, regardless of
Section 15, Article VII being couched in the negative. As judges, we are not to
unduly interpret, and should not accept an interpretation that defeats the intent of
the framers.[73]
Consequently, prohibiting the incumbent President from appointing a Chief Justice
on the premise that Section 15, Article VII extends to appointments in the Judiciary
cannot be sustained. A misinterpretation like Valenzuela should not be allowed to
last after its false premises have been exposed.[74] It will not do to merely
distinguish Valenzuela from these cases, for the result to be reached herein is
entirely
incompatible
with
what Valenzuela decreed. Consequently,
Valenzuela nowdeserves to be quickly sent to the dustbin of the unworthy and
forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII
all other appointments in the Judiciary.

does

not

apply

as

well

to

There is no question that one of the reasons underlying the adoption of


Section 15 as part of Article VII was to eliminate midnight appointments from

being made by an outgoing Chief Executive in the mold of the appointments dealt
with in the leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so
observed, stating that:
xxx it appears that Section 15, Article VII is directed against two types of
appointments: (1) those made for buying votes and (2) those made for partisan
considerations. The first refers to those appointments made within the two months
preceding a Presidential election and are similar to those which are declared
election offenses in the Omnibus Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article VII
consists of the so-called midnight appointments. In Aytona v. Castillo, it was held
that after the proclamation of Diosdado Macapagal as duly elected President,
President Carlos P. Garcia, who was defeated in his bid for reelection, became no
more than a caretaker administrator whose duty was to prepare for the orderly
transfer of authority to the incoming President. Said the Court:
The filling up of vacancies in important positions, if few, and so spaced
as to afford some assurance of deliberate action and careful consideration
of the need for the appointment and appointee's qualifications may
undoubtedly be permitted. But the issuance of 350 appointments in one
night and the planned induction of almost all of them in a few hours before
the inauguration of the new President may, with some reason, be regarded
by the latter as an abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding
appointments.

As indicated, the Court recognized that there may well be appointments to


important positions which have to be made even after the proclamation of the new
President. Such appointments, so long as they are few and so spaced as to
afford some assurance of deliberate action and careful consideration of the
need for the appointment and the appointees qualifications, can be made by
the outgoing President. Accordingly, several appointments made by President
Garcia, which were shown to have been well considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling. It
may not unreasonably be deemed to contemplate not only midnight
appointments those made obviously for partisan reasons as shown by their
number and the time of their making but also appointments presumed made
for the purpose of influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article VII
allowing appointments to be made during the period of the ban therein provided is
much narrower than that recognized in Aytona. The exception allows only the
making of temporary appointments to executive positions when continued
vacancies will prejudice public service or endanger public safety. Obviously, the
article greatly restricts the appointing power of the President during the period of
the ban.
Considering the respective reasons for the time frames for filling vacancies
in the courts and the restriction on the President's power of appointment, it is this
Courts view that, as a general proposition, in case of conflict, the former should
yield to the latter. Surely, the prevention of vote-buying and similar evils
outweighs the need for avoiding delays in filling up of court vacancies or the
disposition of some cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist only once in every
six years. Moreover, those occurring in the lower courts can be filled temporarily
by designation. But prohibited appointments are long-lasting and permanent in
their effects. They may, as earlier pointed out, in fact influence the results of
elections and, for that reason, their making is considered an election offense.[76]

Given the background and rationale for the prohibition in Section 15, Article
VII, we have no doubt that the Constitutional Commission confined the prohibition
to appointments made in the Executive Department. The framers did not need to
extend the prohibition to appointments in the Judiciary, because their establishment
of the JBC and their subjecting the nomination and screening of candidates for
judicial positions to the unhurried and deliberate prior process of the JBC ensured
that there would no longer be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and with irregularities, or
made by an outgoing Chief Executive in the last days of his administration out of a
desire to subvert the policies of the incoming President or for partisanship, [77] the
appointments to the Judiciary made after the establishment of the JBC would not
be suffering from such defects because of the JBCs prior processing of candidates.
Indeed, it is axiomatic in statutory construction that the ascertainment of the
purpose of the enactment is a step in the process of ascertaining the intent or
meaning of the enactment, because the reason for the enactment must necessarily
shed considerable light on the law of the statute, i.e., the intent; hence, the
enactment should be construed with reference to its intended scope and purpose,
and the court should seek to carry out this purpose rather than to defeat it.[78]

Also, the intervention of the JBC eliminates the danger that appointments to
the Judiciary can be made for the purpose of buying votes in a coming presidential
election, or of satisfying partisan considerations. The experience from the time of
the establishment of the JBC shows that even candidates for judicial positions at
any level backed by people influential with the President could not always be
assured of being recommended for the consideration of the President, because they
first had to undergo the vetting of the JBC and pass muster there. Indeed, the
creation of the JBC was precisely intended to de-politicize the Judiciary by doing
away with the intervention of the Commission on Appointments. This insulating
process was absent from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to
appointments in the Judiciary was confirmed by then Senior Associate Justice
Regalado to the JBC itself when it met on March 9, 1998 to discuss the question
raised by some sectors about the constitutionality of xxx appointments to the Court
of Appeals in light of the forthcoming presidential elections. He assured that on the
basis of the (Constitutional) Commissions records, the election ban had no
application to appointments to the Court of Appeals. [79] This confirmation
was accepted by the JBC, which then submitted to the President for consideration
the nominations for the eight vacancies in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due consideration
to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather than on the deliberations
of the Constitutional Commission. Much of the unfounded doubt about the
Presidents power to appoint during the period of prohibition in Section 15, Article
VII could have been dispelled since its promulgation on November 9, 1998,
hadValenzuela properly acknowledged and relied on the confirmation of a
distinguished member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15,
and Section 16) concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke
appointments made by an Acting President,[81] and evidently refers only to
appointments in the Executive Department. It has no application to appointments

in the Judiciary, because temporary or acting appointments can only undermine the
independence of the Judiciary due to their being revocable at will. [82] The letter and
spirit of the Constitution safeguard that independence. Also, there is no law in the
books that authorizes the revocation of appointments in the Judiciary. Prior to their
mandatory retirement or resignation, judges of the first and second level courts and
the Justices of the third level courts may only be removed for cause, but the
Members of the Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require
confirmation by the Commission on Appointments. Thereby, the Constitutional
Commission restored the requirement of confirmation by the Commission on
Appointments after the requirement was removed from the 1973 Constitution. Yet,
because of Section 9 of Article VIII, the restored requirement did not include
appointments to the Judiciary.[83]
Section 14, Section 15, and Section 16 are obviously of the same character,
in that they affect the power of the President to appoint. The fact that Section 14
and Section 16 refer only to appointments within the Executive Department
renders conclusive that Section 15 also applies only to the Executive Department.
This conclusion is consistent with the rule that every part of the statute must be
interpreted with reference to the context, i.e. that every part must be considered
together with the other parts, and kept subservient to the general intent of the
whole enactment.[84] It is absurd to assume that the framers deliberately situated
Section 15between Section 14 and Section 16, if they intended Section 15 to
cover all kinds of presidential appointments. If that was their intention in respect of
appointments to the Judiciary, the framers, if only to be clear, would have easily
and surely inserted a similar prohibition in Article VIII, most likely within Section
4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to
appointments to the Judiciary further undermines the intent of the Constitution of
ensuring the independence of the Judicial Department from the Executive and
Legislative Departments. Such a holding will tie the Judiciary and the Supreme
Court to the fortunes or misfortunes of political leaders vying for the Presidency in
a presidential election. Consequently, the wisdom of having the new President,
instead of the current incumbent President, appoint the next Chief Justice is itself

suspect, and cannot ensure judicial independence, because the appointee can also
become beholden to the appointing authority. In contrast, the appointment by the
incumbent President does not run the same risk of compromising judicial
independence, precisely because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need
for the incumbent President to appoint during the prohibition period the successor
of Chief Justice Puno within the context of Section 4 (1), Article VIII, because
anyway there will still be about 45 days of the 90 days mandated in Section 4(1),
Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy
occurring from Chief Justice Punos retirement by May 17, 2010. It ignores the
need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there will still be
time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is
easily demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the
second Monday of May, letting the elections fall on May 8, at the earliest, or May
14, at the latest. If the regular presidential elections are held on May 8, the period
of the prohibition is 115 days. If such elections are held on May 14, the period of
the prohibition is 109 days. Either period of the prohibition is longer than the full
mandatory 90-day period to fill the vacancy in the Supreme Court. The result is
that there are at least 19 occasions (i.e., the difference between the shortest
possible period of the ban of 109 days and the 90-day mandatory period for
appointments) in which the outgoing President would be in no position to comply
with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to
assume that the framers of the Constitution could not have intended such an
absurdity. In fact, in their deliberations on the mandatory period for the
appointment of Supreme Court Justices under Section 4 (1), Article VIII, the
framers neither discussed, nor mentioned, nor referred to the ban against midnight
appointments under Section 15, Article VII, or its effects on the 90-day period,
or vice versa. They did not need to, because they never intended Section 15, Article
VII to apply to a vacancy in the Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt


on whether a JBC list is necessary at all for the President any President to appoint a
Chief Justice if the appointee is to come from the ranks of the sitting justices of the
Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar
Council for any vacancy. Such appointments need no confirmation.
xxx

The provision clearly refers to an appointee coming into the Supreme Court from
the outside, that is, a non-member of the Court aspiring to become one. It speaks of
candidates for the Supreme Court, not of those who are already members or sitting
justices of the Court, all of whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the
Court as Chief Justice?
The question is not squarely before us at the moment, but it should lend
itself to a deeper analysis if and when circumstances permit. It should be a good
issue for the proposed Constitutional Convention to consider in the light of Senate
President Juan Ponce Enriles statement that the President can appoint the Chief
Justice from among the sitting justices of the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the
successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still
address the situation of having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. In case of a vacancy in the


office of Chief Justice of the Supreme Court or of his inability to perform the
duties and powers of his office, they shall devolve upon the Associate Justice who
is first in precedence, until such disability is removed, or another Chief Justice is
appointed and duly qualified. This provision shall apply to every Associate Justice
who succeeds to the office of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in
the office of the Chief Justice, or in the event that the Chief Justice is unable to
perform his duties and powers. In either of such circumstances, the duties and
powers of the office of the Chief Justice shall devolve upon the Associate Justice
who is first in precedence until a new Chief Justice is appointed or until the
disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral matter
after the Court has hereby resolved the question of consequence, we do not find it
amiss to confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is
composed of a Chief Justice and 14 Associate Justices, who all shall be appointed
by the President from a list of at least three nominees prepared by the JBC for
every vacancy, which appointments require no confirmation by the Commission on
Appointments. With reference to the Chief Justice, he or she is appointed by the
President as Chief Justice, and the appointment is never in an acting capacity. The
express reference to a Chief Justice abhors the idea that the framers contemplated
an Acting Chief Justice to head the membership of the Supreme Court. Otherwise,
they would have simply written so in the Constitution. Consequently, to rely on
Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to
appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be permanent,
not one to be occupied in an acting or temporary capacity. In relation to the scheme
of things under the present Constitution, Section 12 of the Judiciary Act of 1948

only responds to a rare situation in which the new Chief Justice is not yet
appointed, or in which the incumbent Chief Justice is unable to perform the duties
and powers of the office. It ought to be remembered, however, that it was enacted
because the Chief Justice appointed under the 1935 Constitution was subject to the
confirmation of the Commission on Appointments, and the confirmation process
might take longer than expected.
The appointment of the next Chief Justice by the incumbent President is
preferable to having the Associate Justice who is first in precedence take over.
Under the Constitution, the heads of the Legislative and Executive Departments
are popularly elected, and whoever are elected and proclaimed at once become the
leaders of their respective Departments. However, the lack of any appointed
occupant of the office of Chief Justice harms the independence of the Judiciary,
because the Chief Justice is the head of the entire Judiciary. The Chief Justice
performs functions absolutely significant to the life of the nation. With the entire
Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the
Chairman of the Tribunal. There being no obstacle to the appointment of the next
Chief Justice, aside from its being mandatory for the incumbent President to make
within the 90-day period from May 17, 2010, there is no justification to insist that
the successor of Chief Justice Puno be appointed by the next President.
Historically, under the present Constitution, there has been no wide gap
between the retirement and the resignation of an incumbent Chief Justice, on one
hand, and the appointment to and assumption of office of his successor, on the
other hand. As summarized in the comment of the OSG, the chronology of
succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April 18, 1988,
Chief Justice Pedro Yap was appointed on the same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief Justice
Marcelo Fernan was appointed on the same day;
3. When Chief Justice Fernan resigned on December 7, 1991, Chief
Justice Andres Narvasa was appointed the following
day, December 8, 1991;

4. When Chief Justice Narvasa retired on November 29, 1998, Chief


Justice Hilario Davide, Jr. was sworn into office the following
early morning ofNovember 30, 1998;
5. When Chief Justice Davide retired on December 19, 2005, Chief
Justice Artemio Panganiban was appointed the next day, December
20, 2005; and
6. When Chief Justice Panganiban retired on December 6, 2006,
Chief Justice Reynato S. Puno took his oath as Chief Justice
at midnight of December 6, 2006.[85]
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act that the law specifically enjoins as a
duty resulting from an office, trust, or station. [86] It is proper when the act against
which it is directed is one addressed to the discretion of the tribunal or
officer.Mandamus is not available to direct the exercise of a judgment or discretion
in a particular way.[87]
For mandamus to lie, the following requisites must be complied with: (a) the
plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the
defendant to perform the act, because it is mandated by law; (c) the defendant
unlawfully neglects the performance of the duty enjoined by law; (d) the act to be
performed is ministerial, not discretionary; and (e) there is no appeal or any other
plain, speedy and adequate remedy in the ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of
at least three nominees to the President for every vacancy in the Judiciary:
Section 8. xxx

(5) The Council shall have the principal function of recommending


appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy. Such
appointments need no confirmation.
For the lower courts, the President shall issue the appointments within
ninety days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to
fill the vacancy in the Supreme Court within 90 days from the occurrence of the
vacancy, and within 90 days from the submission of the list, in the case of the
lower courts. The 90-day period is directed at the President, not at the JBC. Thus,
the JBC should start the process of selecting the candidates to fill the vacancy in
the Supreme Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the
President the list of nominees to fill a vacancy in the Supreme Court in order to
enable the President to appoint one of them within the 90-day period from the
occurrence of the vacancy. The JBC has no discretion to submit the list to the
President after the vacancy occurs, because that shortens the 90-day period
allowed by the Constitution for the President to make the appointment. For the
JBC to do so will be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted
under the Constitution to reflect on the qualifications of the nominees named in the
list of the JBC before making the appointment.
The duty of the JBC to submit a list of nominees before the start of the
Presidents mandatory 90-day period to appoint is ministerial, but its selection of
the candidates whose names will be in the list to be submitted to the President lies
within the discretion of the JBC. The object of the petitions for mandamus herein
should only refer to the duty to submit to the President the list of nominees for
every vacancy in the Judiciary, because in order to constitute unlawful neglect of
duty, there must be an unjustified delay in performing that duty.
[88]
For mandamus to lie against the JBC, therefore, there should be an unexplained

delay on its part in recommending nominees to the Judiciary, that is, in submitting
the list to the President.
The distinction between a ministerial act and a discretionary one has been
delineated in the following manner:
The distinction between a ministerial and discretionary act is well delineated.
A purely ministerial act or duty is one which an officer or tribunal performs
in a given state of facts, in a prescribed manner, in obedience to the mandate
of a legal authority, without regard to or the exercise of his own judgment
upon the propriety or impropriety of the act done. If the law imposes a duty
upon a public officer and gives him the right to decide how or when the duty
shall be performed, such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires neither the exercise
of official discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and
to issue a writ of mandamus against the JBC. The actions for that purpose are
premature, because it is clear that the JBC still has until May 17, 2010, at the
latest, within which to submit the list of nominees to the President to fill the
vacancy created by the compulsory retirement of Chief Justice Puno.

IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable that only
the President can appoint the Chief Justice. Hence, Sorianos petition for
prohibition in G.R. No. 191032, which proposes to prevent the JBC from
intervening in the process of nominating the successor of Chief Justice Puno, lacks
merit.
On the other hand, the petition for prohibition in G.R. No. 191342 is
similarly devoid of merit. The challenge mounted against the composition of the
JBC based on the allegedly unconstitutional allocation of a vote each to the ex
officio members from the Senate and the House of Representatives, thereby

prejudicing the chances of some candidates for nomination by raising the minimum
number of votes required in accordance with the rules of the JBC, is not based on
the petitioners actual interest, because they have not alleged in their petition that
they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the
petitioners lacklocus standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002
and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being
premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No.
191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the
Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill
the vacancy to be created by the compulsory retirement of Chief
Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief
Justice;
(c) To submit to the incumbent President the short list of nominees for
the position of Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill
other vacancies in the Judiciary and submit to the President the
short list of nominees corresponding thereto in accordance with
this decision.
SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA


Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice

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


Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA


Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD


Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]

Filed on February 9, 2010.


Begun on February 23, 2010.
[3]
Initiated on February 10, 2010.
[4]
Commenced on February 11, 2010.
[5]
Dated February 15, 2010.
[6]
Filed on March 8, 2010.
[7]
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
[8]
Petition in G.R. No. 191002, pp. 3-4.
[9]
Id., p. 5.
[10]
Petition in G.R. No. 191032, pp. 4-8.
[11]
Petition in G.R. No. 191057, pp. 1-2.
[12]
Id., p. 11.
[13]
Petition in G.R. No. 191149.
[14]
Petition in G.R. No. 191342.
[15]
http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
[16]
http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%2710.pdf
[17]
Comment of the JBC, p. 3.
[18]
Id.
[19]
Id., pp. 4-5.
[20]
Id., p. 5.
[21]
Id.
[22]
Id., p. 6.
[23]
Petition in A.M. No. 10-2-5-SC, pp. 5-6.
[24]
Comment of the JBC, p. 6.
[25]
Id., p. 7; bold emphasis is in the original text.
[26]
Comment of the OSG, pp. 13-14.
[27]
Id., p. 14.
[28]
Id., p. 15.
[29]
Id., pp. 20-24.
[30]
Id., pp. 25-27.
[31]
Id., pp. 29-30.
[32]
Id.
[33]
Id., pp. 32-33.
[34]
Id., pp. 34-35.
[35]
Id.
[36]
Id., pp. 35-36. The OSG posits:
National interest compels the President to make such appointment for it is particularly during this
crucial period when national leaders are seeking fresh mandates from the people that the Supreme Court,
more than at any other time, represents stability. Hence, a full court is ideal to ensure not only due
deliberation on and careful consideration of issues but also expeditious disposition of cases.
Indeed, such function becomes especially significant in view of the fact that this is the first time that the
whole country will experience automated elections.
[37]
Id., pp. 36-37. The OSG stresses:
The possible fallouts or serious aftermath of allowing a vacuum in the position of the Chief Justice may
be greater and riskier than the consequences or repercussions of inaction. Needless to state, the appointment
[2]

of the Chief Justice of this Honorable Court (sic) is the most important appointment vested by the 1987
Constitution to (sic) the President.
[38]
Id., p. 37.
[39]
Id., p. 38.
[40]
Filed by Atty. Pitero M. Reig.
[41]
Blacks Law Dictionary, 941 (6th Ed. 1991).
[42]
G.R. No. 155001, May 5, 2003, 402 SCRA 612.
[43]
Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562-563, citing Baker v.
Carr, 369 U.S. 186, 7 L. Ed. 633 (1962).
[44]
Citing Kilosbayan, Inc. v. Morato, supra; Bayan v. Zamora, G.R. No. 138570, October 10, 2000; 342 SCRA 449,
478.
[45]
65 Phil. 56.
[46]
G.R. No. 117, November 7, 1945 (Unreported).
[47]
G.R. No. 2947, January 11, 1959 (Unreported).
[48]
77 Phil. 1012 (1947).
[49]
110 Phil. 331 (1960).
[50]
84 Phil. 368 (1949)
[51]
E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152 (in which the Court ruled
that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi); Bagong Alyansang Makabayan
v. Zamora, G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449 (in whichthe
Court held that given the transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review of
the Visiting Forces Agreement); Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739 (in
which the Court, albeit conceding that the petitioners might not file suit in their capacity as taxpayers without a
showing that Balikatan 02-01 involved the exercise of Congress taxing or spending powers, reiterated Bagong
Alyansang Makabayan v. Zamora, declaring that cases of transcendental importance must be settled promptly and
definitely and the standing requirements may be relaxed); and Osmea v. Commission on Elections, G.R. No. 100318,
100308, 100417,100420, July 30, 1991, 199 SCRA 750 (in which the Court held that where serious constitutional
questions were involved, the transcendental importance to the public of the cases demanded that they be settled
promptly and definitely, brushing aside technicalities of procedure).
[52]
L-No. 40004, January 31, 1975, 62 SCRA 275.
[53]
E.g., Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (in which the Court held that it is sufficient
that the petitioner is a citizen interested in the execution of the law, because the question is one of public duty and
the enforcement of a public right, and the people are the real party-in-interest); Legaspi v. Civil Service
Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530 (in which the Court declared that where an assertion of
a public right is involved, the requirement of personal interest is satisfied by the mere fact that the petitioner is a
citizen and is part of the general public which possesses the right); Kapatiran ng mga Naglilingkod sa Pamahalaan
ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371 (in which the Court disregarded objections to
taxpayers lack of personality to sue in determining the validity of the VAT Law); Albano v. Reyes, G.R. No. 83551,
July 11, 1989, 175 SCRA 264 (in which the Court pronounced that although no expenditure of public funds was
involved in the questioned contract, the petitioner was nonetheless clothed with the legal personality under the
disclosure provision of the Constitution to question it, considering its important role in the economic development of
the country and the magnitude of the financial consideration involved, indicating that public interest was definitely
involved); and Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742,
July 14, 1989, 175 SCRA 343 (in which the Court ruled that it had the discretion to waive the requirement of locus
standi in determining the validity of the implementation of the Comprehensive Agrarian Reform Program, although
the petitioners were not, strictly speaking, covered by the definition of proper party).
[54]
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
[55]
275 Ky 91, 120 SW2d 765 (1938).
[56]
19 Wend. 56 (1837).
[57]
232 NC 48, 59 SE2d 359 (1950).
[58]
Bold emphasis is in the original text.
[59]
Petition in G.R. No. 191032, p. 2.
[60]
Petition in G.R. No. 191057, pp. 3-4; citing the cases of PHILCONSA v. Gimenez, 15 SCRA 479; PHILCONSA v.
Mathay, 18 SCRA 300; PHILCONSA v. Enriquez, 235 SCRA 506; and Lambino v. COMELEC, 505 SCRA 160.

[61]

Petition in G.R. No. 191342, pp. 2-3.


See, for instance, Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81
(where the petitioner questioned the validity of the deployment and utilization of the Marines to assist the PNP in
law enforcement, asserting that IBP was the official organization of Filipino lawyers tasked with the bounden duty
to uphold the rule of law and the Constitution, but the Court held that the IBP had not shown that it was so tasked: In
this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention
of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by
the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It
will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue
now, rather than later, and went on to resolve the issues because the petitioner advanced constitutional issues that
deserved the attention of the Court in view of their seriousness, novelty, and weight as precedents).
[63]
Supra, note 42, p. 645.
[64]
Id.
[65]
See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148
(1974).
[66]
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 912, October 12, 1998.
[67]
Supra, note 6, p. 426-427, stating:
Considering the respective reasons for the time frames for filling vacancies in the courts and the
restriction on the Presidents power of appointment, it is this Courts view that, as a general proposition, in case
of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils
outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases.
Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to
exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier
pointed out, in fact influence the results of elections and, for that reason, their making is considered an
election offense.
To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should prevail
over Section 15 of Article VII, because they may be considered later expressions of the people when they
adoptedthe Constitution, it suffices to point out that the Constitution must be construed in its entirety as one,
single, instrument.
To be sure, instances may be conceived of the imperative need for an appointment, during the period of
the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership
of the court be so reduced that it will have no quorum or should the voting on a particularly important
question requiring expeditious resolution be evenly divided. Such a case, however, is covered by neither
Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.
[68]
Id., pp. 422-423.
[69]
Id., p. 423.
[70]
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., pp. 632-633.
[71]
Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA 714.
[72]
Crawford, Earl. T., The Construction of Statutes, Thomas Law Book Company, St. Louis, Missouri, 262-264
(1940).
[73]
Garcia v. Social Security Commission Legal and Collection, G.R. No. 170735, December 17, 2007, 540 SCRA
456, 472; citing Escosura v. San Miguel Brewery, Inc., 4 SCRA 285, (1962).
[74]
According to Arizona v. Rumsey, 467 U. S. 203, 212 (1984): Although adherence to precedent is not rigidly
required in constitutional cases, any departure from the doctrine of stare decisis demands special justification. The
special justification for the reversal of Valenzuela lies in its intrinsic unsoundness.
[75]
No. L-19313, January 19, 1962, 4 SCRA 1.
[76]
Supra, note 6, pp. 424-426; bold underscoring supplied for emphasis.
[77]
Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. - In the time material to Aytona, there were judges of the Court
of First Instance who were appointed to districts that had no vacancies, because the incumbents had not qualified for
other districts to which they had been supposedly transferred or promoted; at any rate, the appointments still
required confirmation by the Commission on Appointments).
[78]
Crawford, op. cit., supra, note 72, pp. 248-249.
[79]
Supra, note 6, p. 413.
[80]
Id.
[62]

[81]

Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected
President within ninety days from his assumption or reassumption of office.
[82]
Cruz, I., Philippine Political Law, 253 (2002); also Rilloraza v. Vargas, 80 Phil. 297 (1948).
[83]
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 908, which indicates that in his
sponsorship speech delivered on October 12, 1986 on the floor of the Constitutional Commission, Commissioner
Teofisto Guingona explained that [a]ppointments to the judiciary shall not be subject to confirmation by the
Commission on Appointments.
[84]
Rodriguez, Statutory Construction, 171 (1999).
[85]
Comment of the OSG, p. 37.
[86]
Section 3, Rule 65, 1997 Rules of Civil Procedure.
[87]
JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, November 20, 2000, 345 SCRA 143.
[88]
Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397 SCRA 110, citing Musni v. Morales, 315 SCRA 85,
86 (1999).
[89]
Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA 273.

. No. 146933, June 8, 2006, 490 SCRA 273.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 139554

July 21, 2006

ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and
FREDDIE GARCIA, petitioners,
vs.
BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE
POTENCIANO, and DOREEN FERNANDEZ, respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 139565

July 21, 2006

BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE


POTENCIANO, and DOREEN FERNANDEZ, petitioners,
vs.
ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and
FREDDIE GARCIA, respondents.
DECISION
CARPIO, J.:
Presidential Decree No. 15 (PD 15) created the Cultural Center of the Philippines (CCP) for the
primary purpose of propagating arts and culture in the Philippines. 1 The CCP is to awaken the
consciousness of the Filipino people to their artistic and cultural heritage and encourage them to
preserve, promote, enhance, and develop such heritage. 2
PD 15 created a Board of Trustees ("Board") to govern the CCP. PD 15 mandates the Board to draw
up programs and projects that (1) cultivate and enhance public interest in, and appreciation of,
Philippine art; (2) discover and develop talents connected with Philippine cultural pursuits; (3) create

opportunities for individual and national self-expression in cultural affairs; and (4) encourage the
organization of cultural groups and the staging of cultural exhibitions. 3 The Board administers and
holds in trust real and personal properties of the CCP for the benefit of the Filipino people. 4 The
Board invests income derived from its projects and operations in a Cultural Development Fund set
up to attain the CCP's objectives.5
The consolidated petitions in the case at bar stem from a quo warranto proceeding involving two
sets of CCP Boards. The controversy revolves on who between the contending groups, both
claiming as the rightful trustees of the CCP Board, has the legal right to hold office. The resolution of
the issue boils down to the constitutionality of the provision of PD 15 on the manner of filling
vacancies in the Board.
The Case
Before us are two consolidated Petitions for Review on Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure. In G.R. No. 139554, petitioners Armita B. Rufino ("Rufino"), Zenaida R. Tantoco
("Tantoco"),6Lorenzo Calma ("Calma"), Rafael Simpao, Jr. ("Simpao"), and Freddie Garcia ("Garcia"),
represented by the Solicitor General and collectively referred to as the Rufino group, seek to set
aside the Decision7 dated 14 May 1999 of the Court of Appeals in CA-G.R. SP No. 50272 as well as
the Resolution dated 3 August 1999 denying the motion for reconsideration. The dispositive portion
of the appellate court's decision reads:
WHEREFORE, judgment is hereby rendered
1) Declaring petitioners [the Endriga group] to have a clear right to their respective offices to
which they were elected by the CCP Board up to the expiration of their 4-year term,
2) Ousting respondents [the Rufino group], except respondent Zenaida R. Tantoco, from their
respective offices and excluding them therefrom, and
3) Dismissing the case against respondent Zenaida R. Tantoco.
SO ORDERED.8
In G.R. No. 139565, petitioners Baltazar N. Endriga ("Endriga"), Ma. Paz D. Lagdameo
("Lagdameo"), Patricia C. Sison ("Sison"), Irma Ponce-Enrile Potenciano ("Potenciano"), and Doreen
Fernandez ("Fernandez"), collectively referred to as the Endriga group, assail the Resolution dated 3
August 1999 issued by the Court of Appeals in the same case insofar as it denied their Motion for
Immediate Execution of the Decision dated 14 May 1999.
The Antecedents
On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30)
creating the Cultural Center of the Philippines as a trust governed by a Board of Trustees of seven
members to preserve and promote Philippine culture. The original founding trustees, who were all
appointed by President Marcos, were Imelda Romualdez-Marcos, Juan Ponce-Enrile, Andres
Soriano, Jr., Antonio Madrigal, Father Horacio Dela Costa, S.J., I.P. Soliongco, and Ernesto Rufino.
On 5 October 1972, or soon after the declaration of Martial Law, President Marcos issued PD
15,9 the CCP's charter, which converted the CCP under EO 30 into a non-municipal public
corporation free from the "pressure or influence of politics."10 PD 15 increased the members of CCP's

Board from seven to nine trustees. Later, Executive Order No. 1058, issued on 10 October 1985,
increased further the trustees to 11.
After the People Power Revolution in 1986, then President Corazon C. Aquino asked for the
courtesy resignations of the then incumbent CCP trustees and appointed new trustees to the Board.
Eventually, during the term of President Fidel V. Ramos, the CCP Board included Endriga,
Lagdameo, Sison, Potenciano, Fernandez, Lenora A. Cabili ("Cabili"), and Manuel T. Maosa
("Maosa").
On 22 December 1998, then President Joseph E. Estrada appointed seven new trustees to the CCP
Board for a term of four years to replace the Endriga group as well as two other incumbent trustees.
The seven new trustees were:
1. Armita B. Rufino - President, vice Baltazar N. Endriga
2. Zenaida R. Tantoco - Member, vice Doreen Fernandez
3. Federico Pascual - Member, vice Lenora A. Cabili
4. Rafael Buenaventura - Member, vice Manuel T. Maosa
5. Lorenzo Calma - Member, vice Ma. Paz D. Lagdameo
6. Rafael Simpao, Jr. - Member, vice Patricia C. Sison
7. Freddie Garcia - Member, vice Irma Ponce-Enrile Potenciano
Except for Tantoco, the Rufino group took their respective oaths of office and assumed the
performance of their duties in early January 1999.
On 6 January 1999, the Endriga group filed a petition for quo warranto before this Court questioning
President Estrada's appointment of seven new members to the CCP Board. The Endriga group
alleged that under Section 6(b) of PD 15, vacancies in the CCP Board "shall be filled by election by a
vote of a majority of the trustees held at the next regular meeting x x x." In case "only one trustee
survive[s], the vacancies shall be filled by the surviving trustee acting in consultation with the ranking
officers of the [CCP]." The Endriga group claimed that it is only when the CCP Board is entirely
vacant may the President of the Philippines fill such vacancies, acting in consultation with the
ranking officers of the CCP.
The Endriga group asserted that when former President Estrada appointed the Rufino group, only
one seat was vacant due to the expiration of Maosa's term. The CCP Board then had 10 incumbent
trustees, namely, Endriga, Lagdameo, Sison, Potenciano, Fernandez, together with Cabili, Father
Bernardo P. Perez ("Fr. Perez"), Eduardo De los Angeles ("De los Angeles"), Ma. Cecilia Lazaro
("Lazaro"), and Gloria M. Angara ("Angara"). President Estrada retained Fr. Perez, De los Angeles,
Lazaro, and Angara as trustees.
Endriga's term was to expire on 26 July 1999, while the terms of Lagdameo, Sison, Potenciano, and
Fernandez were to expire on 6 February 1999. The Endriga group maintained that under the CCP
Charter, the trustees' fixed four-year term could only be terminated "by reason of resignation,
incapacity, death, or other cause." Presidential action was neither necessary nor justified since the

CCP Board then still had 10 incumbent trustees who had the statutory power to fill by election any
vacancy in the Board.
The Endriga group refused to accept that the CCP was under the supervision and control of the
President. The Endriga group cited Section 3 of PD 15, which states that the CCP "shall enjoy
autonomy of policy and operation x x x."
The Court referred the Endriga group's petition to the Court of Appeals "for appropriate action" in
observance of the hierarchy of courts.
On 14 May 1999, the Court of Appeals rendered the Decision under review granting the quo
warranto petition. The Court of Appeals declared the Endriga group lawfully entitled to hold office as
CCP trustees. On the other hand, the appellate court's Decision ousted the Rufino group from the
CCP Board.
In their motion for reconsideration, the Rufino group asserted that the law could only delegate to the
CCP Board the power to appoint officers lower in rank than the trustees of the Board. The law may
not validly confer on the CCP trustees the authority to appoint or elect their fellow trustees, for the
latter would be officers of equal rank and not of lower rank. Section 6(b) of PD 15 authorizing the
CCP trustees to elect their fellow trustees should be declared unconstitutional being repugnant to
Section 16, Article VII of the 1987 Constitution allowing the appointment only of "officers lower in
rank" than the appointing power.
On 3 August 1999, the Court of Appeals denied the Rufino group's motion for reconsideration. The
Court of Appeals also denied the Endriga group's motion for immediate execution of the 14 May
1999 Decision.
Hence, the instant consolidated petitions.
Meanwhile, Angara filed a Petition-in-Intervention before this Court alleging that although she was
not named as a respondent in the quo warranto petition, she has an interest in the case as the then
incumbent CCP Board Chairperson. Angara adopted the same position and offered the same
arguments as the Rufino group.
The Ruling of the Court of Appeals
The Court of Appeals held that Section 6(b) of PD 15 providing for the manner of filling vacancies in
the CCP Board is clear, plain, and free from ambiguity. Section 6(b) of PD 15 mandates the
remaining trustees to fill by election vacancies in the CCP Board. Only when the Board is entirely
vacant, which is not the situation in the present case, may the President exercise his power to
appoint.
The Court of Appeals stated that the legislative history of PD 15 shows a clear intent "to insulate the
position of trustee from the pressure or influence of politics by abandoning appointment by the
President of the Philippines as the mode of filling" 11 vacancies in the CCP Board. The Court of
Appeals held that until Section 6(b) of PD 15 is declared unconstitutional in a proper case, it remains
the law. The Court of Appeals also clarified that PD 15 vests on the CCP Chairperson the power to
appoint all officers, staff, and personnel of the CCP, subject to confirmation by the Board.
The Court of Appeals denied the Rufino group's motion for reconsideration for failure to raise new
issues except the argument that Section 6(b) of PD 15 is unconstitutional. The Court of Appeals

declined to rule on the constitutionality of Section 6(b) of PD 15 since the Rufino group raised this
issue for the first time in the motion for reconsideration. The Court of Appeals also held, "Nor may
the President's constitutional and/or statutory power of supervision and control over government
corporations restrict or modify the application of the CCP Charter."12
The Court of Appeals, moreover, denied the Endriga group's motion for immediate execution of
judgment on the ground that the reasons submitted to justify execution pending appeal were not
persuasive.
The Issues
In G.R. No. 139554, the Rufino group, through the Solicitor General, contends that the Court of
Appeals committed reversible error:
I
x x x in holding that it was "not actuated" to pass upon the constitutionality of Section 6(b) of
PD 15 inasmuch as the issue was raised for the first time in [Rufino et al.'s] motion for
reconsideration;
II
x x x in not holding that Section 6(b) of PD 15 is unconstitutional considering that:
A. x x x [it] is an invalid delegation of the President's appointing power under the
Constitution;
B. x x x [it] effectively deprives the President of his constitutional power of control and
supervision over the CCP;
III
x x x in declaring the provisions of PD 15 as clear and complete and in failing to apply the
executive/administrative construction x x x which has been consistently recognized and
accepted since 1972;
IV
x x x in finding that [Endriga et al.] have a clear legal right to be the incumbent trustees and
officers of the CCP considering that:
A. Endriga et al. are estopped from instituting the quo warranto action since they recognized
and benefited from the administrative construction regarding the filling of vacancies in the
CCP Board of Trustees x x x;
B. x x x [Endriga et al.'s] terms did not legally commence as [they] were not validly elected
under PD 15;
C. assuming that [Endriga et al.] were validly elected, they lost their right to retain their
offices because their terms as trustees expired on 31 December 1998;

D. [Endriga et al.] assumed positions in conflict x x x with their offices in the CCP and were
thus not entitled to retain the same;
V
x x x in not dismissing the quo warranto petition for being moot x x x;
VI
x x x in holding that [Rufino et al.'s] prayer [that the] disputed offices [be declared] entirely as
vacant is bereft of basis and amounts to "an admission of their lack of right to the office they
claim."13
In G.R. No. 139565, the Endriga group raises the following issue:
whether a writ of quo warranto involving a public office should be declared a self-executing
judgment and deemed immediately executory under Rule 39, Section 4 of the Rules of
Court.14
The Court's Ruling
The petition in G.R. No. 139554 has merit.
The battle for CCP's leadership between the Rufino and Endriga groups dealt a blow to the country's
artistic and cultural activities. The highly publicized leadership row over the CCP created discord
among management, artists, scholars, employees, and even the public because of the public
interest at stake.
Subsequently, the assumption to office of a new President in 2001 seemingly restored normalcy to
the CCP leadership. After then Vice-President Gloria Macapagal-Arroyo assumed the Presidency on
20 January 2001, the Rufino group tendered their respective resignations on 24-29 January 2001 as
trustees of the CCP Board. On 12 July 2001, President Macapagal-Arroyo appointed 11 trustees to
the CCP Board with the corresponding positions set opposite their names:
1. Baltazar N. Endriga - Chairman
2. Nestor O. Jardin - President
3. Ma. Paz D. Lagdameo - Member
4. Teresita O. Luz - Member
5. Irma P.E. Potenciano - Member
6. Eduardo D. De los Angeles - Member
7. Patricia C. Sison - Member
8. Benjamin H. Cervantes - Member

9. Sonia M. Roco - Member


10. Ruperto S. Nicdao, Jr. - Member
11. Lina F. Litton - Member
In its special meeting on 13 July 2001, the CCP Board elected these 11 newly-appointed trustees to
the same positions and as trustees of the CCP Board. In the same meeting, the Board also elected
the Chairman and President.
On 21 December 2001, the Solicitor General submitted to this Court a manifestation stating that the
"election of the trustees was made without prejudice to the resolution of the constitutional issues
before this Honorable Court in G.R. Nos. 139554 and 139565, x x x."15
The Issue of Mootness
We first consider the Rufino group's contention that the Endriga group's quo warranto suit should
have been dismissed for being moot. The Rufino group argued that when the Endriga group's terms
subsequently expired, there was no more actual controversy for the Court to decide.
For the Court to exercise its power of adjudication, there must be an actual case or controversy
one that involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution.16 The case must not be moot or based on extra-legal or other similar considerations not
cognizable by courts of justice.17 A case becomes moot when its purpose has become stale. 18
The purpose of the quo warranto petition was to oust the Rufino group from the CCP Board and to
declare the Endriga group as the rightful trustees of the CCP Board. It may appear that supervening
events have rendered this case moot with the resignation of the Rufino group as well as the
expiration of the terms of the Endriga group based on their appointments by then President Ramos.
A "new" set of CCP trustees had been appointed by President Macapagal-Arroyo and
subsequently elected by the CCP Board.
However, there are times when the controversy is of such character that to prevent its recurrence,
and to assure respect for constitutional limitations, this Court must pass on the merits of a case. This
is one such case.
The issues raised here are no longer just determinative of the respective rights of the contending
parties. The issues pertaining to circumstances personal to the Endriga group may have become
stale. These issues are (1) whether the Endriga group is estopped from bringing the quo
warranto for they themselves were appointed by the incumbent President; (2) whether they were
validly elected by the remaining CCP trustees; (3) whether their terms expired on 31 December 1998
as specified in their appointment papers; and (4) whether they are entitled to immediate execution of
judgment.
However, the constitutional question that gave rise to these issues will continue to spawn the same
controversy in the future, unless the threshold constitutional question is resolved the validity of
Section 6(b) and (c) of PD 15 on the manner of filling vacancies in the CCP Board. While the issues
may be set aside in the meantime, they are certain to recur every four years, especially when a new
President assumes office, generating the same controversy all over again. Thus, the issues raised
here are capable of repetition, yet evading review if compromises are resorted every time the same
controversy erupts and the constitutionality of Section 6(b) and (c) of PD 15 is not resolved.

The Court cannot refrain from passing upon the constitutionality of Section 6(b) and (c) of PD 15 if
only to prevent a repeat of this regrettable controversy and to protect the CCP from being
periodically wracked by internecine politics. Every President who assumes office naturally wants to
appoint his or her own trustees to the CCP Board. A frontal clash will thus periodically arise between
the President's constitutional power to appoint under Section 16, Article VII of the 1987 Constitution
and the CCP trustees' power to elect their fellow trustees under Section 6(b) and (c) of PD 15.
This Court may, in the exercise of its sound discretion, brush aside procedural barriers 19 and take
cognizance of constitutional issues due to their paramount importance. It is the Court's duty to apply
the 1987 Constitution in accordance with what it says and not in accordance with how the
Legislature or the Executive would want it interpreted. 20 This Court has the final word on what the law
means.21 The Court must assure respect for the constitutional limitations embodied in the 1987
Constitution.
Interpreting Section 6(b) and (c) of PD 15
At the heart of the controversy is Section 6(b) of PD 15, as amended, which reads:
Board of Trustees. The governing powers and authority of the corporation shall be vested
in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation.
xxxx
(b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity,
death or other cause as may be provided in the By-laws, shall be filled by election by a
vote of a majority of the trustees held at the next regular meeting following
occurrence of such vacancy. The elected trustee shall then hold office for a complete term
of four years unless sooner terminated by reason of resignation, incapacity, death or other
cause. Should only one trustee survive, the vacancies shall be filled by the surviving trustee
acting in consultation with the ranking officers of the Center. Such officers shall be
designated in the Center's Code of By-Laws. Should for any reason the Board be left entirely
vacant, the same shall be filled by the President of the Philippines acting in consultation with
the aforementioned ranking officers of the Center. (Emphasis supplied)
Inextricably related to Section 6(b) is Section 6(c) which limits the terms of the trustees, as follows:
(c) No person may serve as trustee who is not a resident of the Philippines, of good moral
standing in the community and at least 25 years of age: Provided, That there shall always be
a majority of the trustees who are citizens of the Philippines. Trustees may not
be reelected for more than two (2) consecutive terms. (Emphasis supplied)
The clear and categorical language of Section 6(b) of PD 15 states that vacancies in the CCP Board
shall befilled by a majority vote of the remaining trustees. Should only one trustee survive, the
vacancies shall be filled by the surviving trustee acting in consultation with the ranking
officers of the CCP. Should the Board become entirely vacant, the vacancies shall be filled by
the President of the Philippines acting in consultation with the same ranking officers of the CCP.
Thus, the remaining trustees, whether one or more, elect their fellow trustees for a fixed four-year
term. On the other hand, Section 6(c) of PD 15 does not allow trustees to reelect fellow trustees for
more than two consecutive terms.
The Power of Appointment

The source of the President's power to appoint, as well as the Legislature's authority to delegate the
power to appoint, is found in Section 16, Article VII of the 1987 Constitution which provides:
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 of the armed forces from the rank of colonel or naval captain, 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.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the
Congress. (Emphasis supplied)
The power to appoint is the prerogative of the President, except in those instances when the
Constitution provides otherwise. Usurpation of this fundamentally Executive power by the Legislative
and Judicial branches violates the system of separation of powers that inheres in our democratic
republican government.22
Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of
officers. The first group refers to the heads of the Executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in the President by the Constitution. The second group
refers to those whom the President may be authorized by law to appoint. The third group refers to all
other officers of the Government whose appointments are not otherwise provided by law.
Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments
Congress may by law vest in the heads of departments, agencies, commissions, or boards. The
present case involves the interpretation of Section 16, Article VII of the 1987 Constitution with
respect to the appointment of this fourth group of officers.23
The President appoints the first group of officers with the consent of the Commission on
Appointments. The President appoints the second and third groups of officers without the consent of
the Commission on Appointments. The President appoints the third group of officers if the law is
silent on who is the appointing power, or if the law authorizing the head of a department, agency,
commission, or board to appoint is declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15
is found unconstitutional, the President shall appoint the trustees of the CCP Board because the
trustees fall under the third group of officers.
The Scope of the Appointment Power of the Heads of
Departments, Agencies, Commissions, or Boards
The original text of Section 16, Article VII of the 1987 Constitution, as written in Resolution No.
51724 of the Constitutional Commission, is almost a verbatim copy of the one found in the 1935
Constitution. Constitutional Commissioner Father Joaquin Bernas, S.J., explains the evolution of this
provision and its import, thus:
The last sentence of the first paragraph of Section 16 x x x is a relic from the 1935 and 1973
Constitutions, x x x.

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 than those to whom appointing authority could be given.
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." No mention was made of the
President. The premise was that the power to appoint belonged to the President; but
the Batasan could diffuse this authority by allowing it to be shared by officers other
than the President.
The 1987 provision also has the evident intent of allowing Congress to give to officers other
than the President the authority to appoint. To that extent therefore reference to the
President is pointless. And by using the word "alone," copying the tenor of the 1935
provision, it implies, it is submitted, that the general rule in the 1935 Constitution of requiring
confirmation by the Commission on Appointments had not been changed. Thereby the
picture has been blurred. This confused text, however, should be attributed to oversight.
Reference to the President must be ignored and the whole sentence must be read merely as
authority for Congress to vest appointing power in courts, in heads of departments,
agencies, commissions, or boards after the manner of the 1973 text.
Incidentally, the 1987 text, in order to eschew any pejorative connotation, 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.25 (Emphasis supplied)
The framers of the 1987 Constitution clearly intended that Congress could by law vest the
appointment of lower-ranked officers in the heads of departments, agencies, commissions, or
boards. The deliberations26 of the 1986 Constitutional Commission explain this intent beyond any
doubt.27
The framers of the 1987 Constitution changed the qualifying word "inferior" to the less disparaging
phrase "lower in rank" purely for style. However, the clear intent remained that these inferior or
lower in rank officers are the subordinates of the heads of departments, agencies,
commissions, or boards who are vested by law with the power to appoint. The express
language of the Constitution and the clear intent of its framers point to only one conclusion the
officers whom the heads of departments, agencies, commissions, or boards may appoint must be of
lower rank than those vested by law with the power to appoint.
Congress May Vest the Authority to Appoint
Only in the Heads of the Named Offices
Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest "in the heads of
departments, agencies, commissions, or boards" the power to appoint lower-ranked officers. Section
16 provides:

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. (Emphasis supplied)
In a department in the Executive branch, the head is the Secretary. The law may not authorize the
Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive
department. In an agency, the power is vested in the head of the agency for it would be
preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the
commission. In a board, the head is also the chairperson of the board. In the last three situations,
the law may not also authorize officers other than the heads of the agency, commission, or board to
appoint lower-ranked officers.
The grant of the power to appoint to the heads of agencies, commissions, or boards is a matter of
legislative grace. Congress has the discretion to grant to, or withhold from, the heads of agencies,
commissions, or boards the power to appoint lower-ranked officers. If it so grants, Congress may
impose certain conditions for the exercise of such legislative delegation, like requiring the
recommendation of subordinate officers or the concurrence of the other members of the commission
or board.
This is in contrast to the President's power to appoint which is a self-executing power vested by the
Constitution itself and thus not subject to legislative limitations or conditions. 28 The power to appoint
conferred directly by the Constitution on the Supreme Court en banc29 and on the Constitutional
Commissions30 is also self-executing and not subject to legislative limitations or conditions.
The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically
in the "heads" of the specified offices, and in no other person.31 The word "heads" refers to the
chairpersons of the commissions or boards and not to their members, for several reasons.
First, a plain reading of the last sentence of the first paragraph of Section 16, Article VII of the 1987
Constitution shows that the word "heads" refers to all the offices succeeding that term, namely, the
departments, agencies, commissions, or boards. This plain reading is consistent with other related
provisions of the Constitution.
Second, agencies, like departments, have no collegial governing bodies but have only chief
executives or heads of agencies. Thus, the word "heads" applies to agencies. Any other
interpretation is untenable.
Third, all commissions or boards have chief executives who are their heads. Since the Constitution
speaks of "heads" of offices, and all commissions or boards have chief executives or heads, the
word "heads" could only refer to the chief executives or heads of the commissions or boards.
Fourth, the counterpart provisions of Section 16, Article VII of the 1987 Constitution in the 1935 and
1973 Constitutions uniformly refer to "heads" of offices. The 1935 Constitution limited the grant of the
appointment power only to "heads of departments."32 The 1973 Constitution expanded such grant to
other officers, namely, "members of the Cabinet, x x x, courts, heads of agencies, commissions, and
boards x x x."33
If the 1973 Constitution intended to extend the grant to members of commissions or boards, it could
have followed the same language used for "members of the Cabinet" so as to state "members of
commissions or boards." Alternatively, the 1973 Constitution could have placed the words
commissions and boards after the word "courts" so as to state "members of the Cabinet, x x x,

courts, commissions and boards." Instead, the 1973 Constitution used "heads of agencies,
commissions, and boards."
Fifth, the 1935, 1973, and 1987 Constitutions make a clear distinction whenever granting the power
to appoint lower-ranked officers to members of a collegial body or to the head of that collegial body.
Thus, the 1935 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of
departments." Similarly, the 1973 Constitution speaks of "members of the Cabinet, courts, heads
of agencies, commissions, and boards."
Also, the 1987 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of
departments, agencies, commissions, or boards." This is consistent with Section 5(6), Article VIII of
the 1987 Constitution which states that the "Supreme Court shall x x x [a]ppoint all officials and
employees of the Judiciary in accordance with the Civil Service Law," making the Supreme Court en
banc the appointing power. In sharp contrast, when the 1987 Constitution speaks of the power to
appoint lower-ranked officers in the Executive branch, it vests the power "in the heads of
departments, agencies, commissions, or boards."
In addition, the 1987 Constitution expressly provides that in the case of the constitutional
commissions, the power to appoint lower-ranked officers is vested in the commission as a body.
Thus, Section 4, Article IX-A of the 1987 Constitution provides, "The Constitutional Commissions
shall appoint their officials and employees in accordance with law."
Sixth, the last clause of the pertinent sentence in Section 16, Article VII of the 1987 Constitution is
anenumeration of offices whose heads may be vested by law with the power to appoint lowerranked officers. This is clear from the framers' deliberations of the 1987 Constitution, thus:
THE PRESIDENT: Commissioner Davide is recognized.
MR. DAVIDE: On page 8, line 3, change the period (.) after "departments" to a comma (,)
and add AGENCIES, COMMISSIONS, OR BOARDS. This is just to complete the
enumeration in the 1935 Constitution from which this additional clause was taken.
THE PRESIDENT: Does the Committee accept?
xxxx
MR. SUMULONG: We accept the amendment.
MR. ROMULO: The Committee has accepted the amendment, Madam President.
THE PRESIDENT: Is there any objection to the addition of the words "AGENCIES,
COMMISSIONS, OR BOARDS" on line 3, page 8? (Silence) The Chair hears none; the
amendment is approved.34 (Italicization in the original; boldfacing supplied)
As an enumeration of offices, what applies to the first office in the enumeration also applies to the
succeeding offices mentioned in the enumeration. Since the words "in the heads of" refer to
"departments," the same words "in the heads of" also refer to the other offices listed in the
enumeration, namely, "agencies, commissions, or boards."
The Chairperson of the CCP Board is the Head of CCP

The head of the CCP is the Chairperson of its Board. PD 15 and its various amendments constitute
the Chairperson of the Board as the head of CCP. Thus, Section 8 of PD 15 provides:
Appointment of Personnel. The Chairman, with the confirmation of the Board, shall have
the power to appoint all officers, staff and personnel of the Center with such compensation
as may be fixed by the Board, who shall be residents of the Philippines. The Center may
elect membership in the Government Service Insurance System and if it so elects, its officers
and employees who qualify shall have the same rights and privileges as well as obligations
as those enjoyed or borne by persons in the government service. Officials and employees of
the Center shall be exempt from the coverage of the Civil Service Law and Rules.
Section 3 of the Revised Rules and Regulations of the CCP recognizes that the head of the CCP is
the Chairman of its Board when it provides:
CHAIRMAN OF THE BOARD. The Board of Trustees shall elect a Chairman who must be
one of its members, and who shall be the presiding officer of the Board of Trustees, with
power among others, to appoint, within the compensation fixed by the Board, and subject to
confirmation of the Board, remove, discipline all officers and personnel of the Center, and to
do such other acts and exercise such other powers as may be determined by the Board of
Trustees. The Chairman shall perform his duties and exercise his powers as such until such
time as the Board of Trustees, by a majority vote, shall elect another Chairman. The
Chairman shall be concurrently President, unless the Board otherwise elects another
President.
Thus, the Chairman of the CCP Board is the "head" of the CCP who may be vested by law, under
Section 16, Article VII of the 1987 Constitution, with the power to appoint lower-ranked officers of the
CCP.
Under PD 15, the CCP is a public corporation governed by a Board of Trustees. Section 6 of PD 15,
as amended, states:
Board of Trustees. The governing powers and authority of the corporation shall be vested
in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation.
The CCP, being governed by a board, is not an agency but a board for purposes of Section 16,
Article VII of the 1987 Constitution.
Section 6(b) and (c) of PD 15 Repugnant to
Section 16, Article VII of the 1987 Constitution
Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16, Article VII of the
1987 Constitution. Section 6(b) and (c) of PD 15 empowers the remaining trustees of the CCP Board
to fill vacancies in the CCP Board, allowing them to elect their fellow trustees. On the other hand,
Section 16, Article VII of the 1987 Constitution allows heads of departments, agencies,
commissions, or boards to appoint only "officers lower in rank" than such "heads of departments,
agencies, commissions, or boards." This excludes a situation where the appointing officer appoints
an officer equal in rank as him. Thus, insofar as it authorizes the trustees of the CCP Board to elect
their co-trustees, Section 6(b) and (c) of PD 15 is unconstitutional because it violates Section 16,
Article VII of the 1987 Constitution.

It does not matter that Section 6(b) of PD 15 empowers the remaining trustees to "elect" and not
"appoint" their fellow trustees for the effect is the same, which is to fill vacancies in the CCP Board. A
statute cannot circumvent the constitutional limitations on the power to appoint by filling vacancies in
a public office through election by the co-workers in that office. Such manner of filling vacancies in a
public office has no constitutional basis.
Further, Section 6(b) and (c) of PD 15 makes the CCP trustees the independent appointing power of
their fellow trustees. The creation of an independent appointing power inherently conflicts with the
President's power to appoint. This inherent conflict has spawned recurring controversies in the
appointment of CCP trustees every time a new President assumes office.
In the present case, the incumbent President appointed the Endriga group as trustees, while the
remaining CCP trustees elected the same Endriga group to the same positions. This has been
the modus vivendi in filling vacancies in the CCP Board, allowing the President to appoint and the
CCP Board to elect the trustees. In effect, there are two appointing powers over the same set of
officers in the Executive branch. Each appointing power insists on exercising its own power, even
if the two powers are irreconcilable. The Court must put an end to this recurring anomaly.
The President's Power of Control
There is another constitutional impediment to the implementation of Section 6(b) and (c) of PD 15.
Under our system of government, all Executive departments, bureaus, and offices are under the
control of the President of the Philippines. Section 17, Article VII of the 1987 Constitution provides:
The President shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed. (Emphasis supplied)
The presidential power of control over the Executive branch of government extends to all executive
employees from the Department Secretary to the lowliest clerk.35 This constitutional power of the
President is self-executing and does not require any implementing law. Congress cannot limit or
curtail the President's power of control over the Executive branch.36
The 1987 Constitution has established three branches of government the Executive, Legislative
and Judicial. In addition, there are the independent constitutional bodies like the Commission on
Elections, Commission on Audit, Civil Service Commission, and the Ombudsman. Then there are the
hybrid or quasi-judicial agencies,37exercising jurisdiction in specialized areas, that are under the
Executive branch for administrative supervision purposes, but whose decisions are reviewable by
the courts. Lastly, there are the local government units, which under the Constitution enjoy local
autonomy38 subject only to limitations Congress may impose by law.39 Local government units are
subject to general supervision by the President.40
Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial
branches, or must belong to one of the independent constitutional bodies, or must be a quasi-judicial
body or local government unit. Otherwise, such government office, entity, or agency has no legal and
constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not
one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local
government unit. Thus, the CCP must fall under the Executive branch. Under the Revised
Administrative Code of 1987, any agency "not placed by law or order creating them under any
specific department" falls "under the Office of the President."41

Since the President exercises control over "all the executive departments, bureaus, and offices," the
President necessarily exercises control over the CCP which is an office in the Executive branch. In
mandating that the President "shall have control of all executive x x x offices," Section 17, Article
VII of the 1987 Constitution does not exempt any executive office one performing executive
functions outside of the independent constitutional bodies from the President's power of control.
There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial
functions.
The President's power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of
departments, agencies, commissions, or boards. The power of control means the power to revise or
reverse the acts or decisions of a subordinate officer involving the exercise of discretion. 42
In short, the President sits at the apex of the Executive branch, and exercises "control of all the
executive departments, bureaus, and offices." There can be no instance under the Constitution
where an officer of the Executive branch is outside the control of the President. The Executive
branch is unitary since there is only one President vested with executive power exercising control
over the entire Executive branch.43 Any office in the Executive branch that is not under the control of
the President is a lost command whose existence is without any legal or constitutional basis.
The Legislature cannot validly enact a law that puts a government office in the Executive branch
outside the control of the President in the guise of insulating that office from politics or making it
independent. If the office is part of the Executive branch, it must remain subject to the control of the
President. Otherwise, the Legislature can deprive the President of his constitutional power of control
over "all the executive x x x offices." If the Legislature can do this with the Executive branch, then the
Legislature can also deal a similar blow to the Judicial branch by enacting a law putting decisions of
certain lower courts beyond the review power of the Supreme Court. This will destroy the system of
checks and balances finely structured in the 1987 Constitution among the Executive, Legislative,
and Judicial branches.
Of course, the President's power of control does not extend to quasi-judicial bodies whose
proceedings and decisions are judicial in nature and subject to judicial review, even as such quasijudicial bodies may be under the administrative supervision of the President. It also does not extend
to local government units, which are merely under the general supervision of the President.
Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to fill vacancies in the
Board, runs afoul with the President's power of control under Section 17, Article VII of the 1987
Constitution. The intent of Section 6(b) and (c) of PD 15 is to insulate the CCP from political
influence and pressure, specifically from the President. 44 Section 6(b) and (c) of PD 15 makes the
CCP a self-perpetuating entity, virtually outside the control of the President. Such a public office or
board cannot legally exist under the 1987 Constitution.
Section 3 of PD 15, as amended, states that the CCP "shall enjoy autonomy of policy and operation
x x x."45 This provision does not free the CCP from the President's control, for if it does, then it would
be unconstitutional. This provision may give the CCP Board a free hand in initiating and formulating
policies and undertaking activities, but ultimately these policies and activities are all subject to the
President's power of control.
The CCP is part of the Executive branch. No law can cut off the President's control over the CCP in
the guise of insulating the CCP from the President's influence. By stating that the "President shall
have control of all the executive x x x offices," the 1987 Constitution empowers the President not

only to influence but even to control all offices in the Executive branch, including the
CCP. Control is far greater than, and subsumes, influence.
WHEREFORE, we GRANT the petition in G.R. No. 139554. We
declare UNCONSTITUTIONAL Section 6(b) and (c) of Presidential Decree No. 15, as amended,
insofar as it authorizes the remaining trustees to fill by election vacancies in the Board of Trustees of
the Cultural Center of the Philippines. In view of this ruling in G.R. No. 139554, we find it
unnecessary to rule on G.R. No. 139565.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr.,
J.J., concur.

x -------------------------------------------------------------------------------- x

G.R. No. 139554


(Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael Simpao, Jr., and Freddie Garcia,
petitioners, v.Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-Enrile
Potenciano, and Doreen Fernandez, respondents)
G.R. No. 139565
(Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-Enrile Potenciano, and
Doreen Fernandez, petitioners, v. Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael
Simpao, Jr., and Freddie Garcia, respondents.)
Promulgated:
July 21, 2006
x -------------------------------------------------------------------------------- x
DISSENTING OPINION
TINGA, J.:
The majority's ruling is not as innocuous as it may seem. It is of monumental but disturbing
consequence. It upsets the delicate balance ordained by our constitutional system, which reposes
on the three equal branches of government different inherent functions augmented by specifically
chartered duties. In one fell swoop, it expands executive power in unprecedented fashion
while diminishing the inherent plenary power of Congress to make laws as explicitly
guaranteed by the Constitution. It gives license to the President to disregard the laws
enacted by Congress although it is the Chief Executive's sworn constitutional duty to
faithfully execute the laws of the land, an intolerable notion under the democratic order. With
all due respect, I must dissent.

The majority has voted to uphold the power of the President to appoint the members of the Board of
Trustees (CCP board) of the Cultural Center of the Philippines (CCP), a government owned or
controlled corporation (GOCC) established by P.D. No. 15 as amended (CCP Charter) 1 as a "nonmunicipal public corporation."2 A brief reference to the key facts is necessary to illustrate the
seriousness of the problem.
The petitioners in G.R. No. 139565 (Endriga Group) were members of the CCP board who sat in
such capacity beginning in 1995. Then President Ramos issued appointment papers to the members
of the Endriga Group in 1995, qualifying that their appointment would extend only until 31 December
1998. At the same time, the Endriga Group was likewise elected by the CCP board as members of
the board, with Endriga himself elected as President.
On 22 December 1998, President Estrada advised Endriga through a letter advising him of seven (7)
new appointees (the Rufino Group) to the CCP board replacing the Endriga Group. The Endriga
Group resisted these new appointments by filing a quo warranto petition, the resolution of which by
the Court of Appeals spawned the present petitions.
In main, the Endriga Group posited that they could not have been replaced by President Estrada as
they had not yet completed their four-year term of office as provided in the CCP Charter. The Court
of Appeals3 agreed with the basic position of the Endriga Group, notwithstanding the proviso made
by President Ramos in his appointment papers. The Court of Appeals compelled obeisance instead
to Section 6 of the CCP Charter which reads:
Sec. 6. Board of Trustees. The governing powers and authority of the corporation shall be
vested in, and exercised by, a Board of eleven (11) trustees who shall serve without
compensation.
(a) The trustees appointed by the President of the Philippines pursuant to Executive Order
No. 30 dated 25 June 1966, and currently holding office shall be the first trustees to serve on
the Board of the new Center and shall be known as Founding Trustees. They shall elect the
remaining trustees for a complete [Board]. Elected trustees shall hold office for a period of
four (4) years.
(b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity,
death or other cause as may be provided in the By-laws, shall be filled by election by a vote
of a majority of the trustees held at the next regular meeting following occurrence of such
vacancy. The elected trustee shall then hold office for a complete term of four years unless
sooner terminated by reason of resignation, incapacity, death or other cause. Should only
one trustee survive, the vacancies shall be filled by the surviving trustee acting in
consultation with the ranking officers of the Center. Such officers shall be designated in the
Center's Code of By-Laws. Should for any reason the Board be left entirely vacant, the same
shall be filled by the President of the Philippines acting in consultation with the
aforementioned ranking officers of the Center.4
The CCP Charter clearly states that the trustees appointed by the President in 1966 shall elect the
remaining trustees to complete the board, and such electees shall hold office for a period of four (4)
years. Subsequent vacancies in the board shall be filled by the Board of Trustees, through a majority
vote, with the new appointee serving for a four (4)-year term. The power to select the members of
the Board of Trustees is always vested in the board, no matter the number of persons who are
serving therein at a particular time, except when all the positions in the board without exception are
vacant. It is only then that the President may exercise the power to appoint the members of the

board, subject to the condition that the appointments be made in consultation with the ranking
officers of the CCP.
The majority, reversing the Court of Appeals, holds this setup prescribed by Section 6 of the CCP
Charter, unconstitutional. Two grounds are offered for this holding. First, Section 16, 5 Article VII of
the Constitution (Appointments Clause) limits the authority of Congress to vest the power of
appointment over lower-ranked officials only to "heads of departments, agencies, commissions or
boards." In the majority's estimation, the CCP should be considered as a "board" for purposes of the
Appointments Clause, and thus, only the chairperson of the CCP could be authorized by law to
exercise the right to appoint.6
Second, the presidential power of control over the executive branch, as provided in Section
17,7 Article VII of the Constitution (Executive Control Clause), grants the President control over the
CCP. The authority of the CCP board of Trustees to fill vacancies in the Board renders the CCP a
"self-perpetuating entity [outside] the control of the President," and is thus unconstitutionally drawn. 8
It is not readily apparent from the ponencia whether it maintains that executive control, as
contemplated in the Constitution, empowers the President to make all appointments of officers and
officials within the executive branch. If that were the position, such view is clearly inconsistent with
the Appointments Clause which categorically authorizes Congress to empower officials other than
the President to make such appointments, in the case of lower-ranked officials. To sustain the
expansive view that "executive control" extends to the power of the President to make all
appointments in the executive branch would render the Appointments Clause inutile. It would then be
senseless to acknowledge that Congress has the right to authorize the heads of departments,
agencies, commissions or boards to appoint their junior officers, since executive control would
indubitably vest that right to the President anyway. It is nonetheless cold comfort that the majority
does not expressly frame such a view, and I hope that the ponencia does not lay the groundwork for
such a radical notion.
Notwithstanding, I prefer to delineate the critical issues in the following manner. The Appointments
Clause, being complete in itself, is the sole constitutional provision governing the authority of the
President to make appointments to the executive branch, as well as the authority of Congress to
provide otherwise in certain instances. The Executive Control Clause does not extend to the
presidential power of appointments. Thus, in ruling on whether or not the President or the CCP
Board of Trustees has the power to appoint members of the board, it is the Appointments Clause
alone that should govern.
At the same time, due consideration of the Executive Control Clause is also warranted in the present
cases, but for a different purpose. It is clear from the petitions that assailed also are the acts of
President Ramos in limiting below four (4) years the term of his appointees to the CCP board, and
the subsequent act of President Estrada in appointing new appointees to the board despite the fact
that the four(4)-year term of those persons who purportedly vacated their seats had not yet expired.
Thus, a second critical issue arises: whether the holder of a statutory term of office in the
executive branch may be removed from office by the President on the basis of the power of
executive control.
The Power of Appointment in Relation to the CCP Board of Trustees
Constitutional authority to make appointments within the executive branch is governed solely by the
Appointments Clause of the Constitution, which is broad enough to cover all possible appointment
scenarios. The provision states:

SECTION 16. 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 of the armed forces from the rank of colonel or naval
captain, 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.
The first sentence of the Appointments Clause enumerates the officers whom only the President
may appoint, subject to the consent of the Commission of Appointments. There is no doubt that no
official of the CCP, or any GOCC for that matter, is included in this first category of appointees. 9
The second and third sentences must be examined together. The second sentence authorizes the
President to appoint all other officers whose appointments are not otherwise provided for by law, or
those whom he may be authorized to appoint by law. This authority must be appreciated with the
third sentence, which authorizes Congress to vest the appointment of other officers lower in rank to
the President, the courts, or in the heads of departments, agencies, commissions, or boards.
Thus, as regards the officials in the executive branch other than those enumerated in the first
sentence of the Appointments Clause, or those who do not belong to the first category, the following
valid scenarios are authorized: (1) the law may expressly authorize the President to make the
appointment; (2) the law may expressly authorize the courts or the heads of departments, agencies,
commissions or boards to appoint those officers lower in rank; (3) the law may remain silent on the
power of appointment, thus enabling the President to make the appointment on the basis of the
Appointments Clause itself. Implicitly, it can also be argued that other than the case of "other officers
lower in rank," Congress may authorize a person or entity other than the President to appoint all
such other officers, or provide for a modality through which such appointment may be made. I am
aware that this last point may be a source of controversy, yet for reasons I shall explain later, it is not
an issue in the particular cases at bar and, hence, need not be settled for now.
From the same provision, the majority formulates two premises: that the CCP is considered a
"board" or "Board" for purposes of the Appointments Clause, 10 and, that only the President or the
chairperson of the CCP Board of Trustees, may be authorized by law to appoint officials of the
CCP.11 I respectfully disagree with both premises.
CCP an Agency under the Appointments Clause
I submit that "boards," as used in the Appointments Clause, does not pertain to the boards of
directors of government or public corporations such as the CCP. Such GOCCs are properly
considered as agencies which nonetheless fall within the same classification in the Appointments
Clause.
The term "board" or "Board,"12 as utilized in the administrative bureaucracy, may pertain to different
entities performing different functions under different mandates. There are several prominent
government agencies which use the nomenclature "Board," such as the Monetary Board (MB), the
Housing Land Use and Regulatory Board (HLURB), the Department of Agrarian Reform Adjudication
Board (DARAB), the Movie and Television Review and Classification Board (MTRCB), and the
former Energy Regulatory Board, among others. Collegial bodies such as the Boards just mentioned
have long formed part of the executive superstructure, along with departments, agencies and
commissions. Hence, it came as no surprise that all four (4) entities were lumped together in the
Appointments Clause.

However, the board of directors or board of trustees of a government corporation should be


appreciated in a different context. Unlike the Boards enumerated above, the board of
directors/trustees does not constitute a unit that operates by itself as an agency of the government.
Instead, such board of directors/trustees, as a general rule, operates as the body that exercises
the corporate powers of the government corporations concerned. The Constitution itself authorizes
the creation of government-owned or controlled corporations through special charters, 13 and the CCP
was established as a public corporation through Presidential Decree No. 15, its charter.
The majority believes differently, stating that since the CCP is governed by a board, it is not an
agency but a Board for purposes of the Appointments Clause. The majority explains this away by
merely noting that there is such an entity as the CCP Board of Trustees. The bother of explaining
why the CCP is a board, as distinguished from a department, agency or commission is altogether
avoided. Instead, it is assumed as self-evident that since there is a CCP Board of Trustees, the CCP
is consequently a board.
For one, the CCP itself may be considered as an agency since under the Administrative Code, an
agency includes a government-owned or controlled corporation. 14 The term "Board," used in a
general sense, has been defined as a representative body organized to perform a trust or to execute
official or representative functions,15or a group of persons with managerial, supervisory or
investigatory functions.16 There is no doubt that sovereign executive functions can be delegated
through duly constituted Boards, such as the HLURB or MTRCB, and it is commonly understood that
the Boards in those cases refer to a group of individuals vested with the exercise of governmental
functions. However, boards do not normally have independent juridical personality, unlike
corporations.
Indeed, whatever governmental functions are exercised by the members of the CCP Board of
Trustees are not derived from their formation as a board but from its installation by charter as the
governing authority of a GOCC. The Board of Trustees is not vested with any sort of independent
juridical personality under the CCP charter; such personality is imbued instead in the CCP itself. The
Board of Trustees may be the governing authority of the CCP, but it is the CCP itself as the
legislative creation that is tasked to perform the mandate of its charter. The latest performances of
the prima ballerinas are sponsored and presented not by the panel known as the "CCP Board of
Trustees," but by the entity that is the CCP itself.
Assuming for the nonce that there is ambiguity in how the term "board" in the Appointments Clause
should be construed, the rule is that the correct meaning may be made clear and specific by
considering the company of words in which the term is found or with which it is
associated.17 Departments, agencies, commissions orboards (Boards) all pertain to segregate units
within the executive branch performing with particular competence unique and specialized functions.
Departments, agencies, commissions or boards (Boards) refer to offices of different nomenclatures
within the executive department, each performing functions that are independent of each other.
Furthermore, that the use of the disjunctive term "or" in the enumeration "departments, agencies,
commissions orboards (Boards)" signifies that these four entities, though lumped together, are under
constitutional contemplation disassociated or distinct from each other.18 Given the degree of fluidity
within administrative practice, it is standard that a particular government office would create
subdivided groupings to which functions would be delegated. Considering the paucity of available
terms, these groupings could very well be named as "departments," "agencies," "commissions," or
"boards" (Boards). Thus, Agency X could have an Accounting Department, a Board of Merit Review,
and Employee Health and Welfare Commission. With the majority's reasoning, these three
aggrupments would fall within the same constitutional class under the Appointments Clause as

Agency X itself. Worse, the appointing power of the head of the Accounting Department would be
treated separately and accorded equal constitutional weight as that of the head of Agency X.
The example may border on the absurd, but that is the implication of the majority's holding that the
CCP Board of Trustees is considered as a "Board" for purposes of the Appointments Clause, even if
the CCP itself is properly an agency. The enumeration "departments, agencies, commissions or
boards (Boards)," highlighted by the use of the disjunctive word "or" positively implies that the
items are treated singly, and not one at the same time.19 The CCP board cannot be disassociated
from the CCP itself for the former was constituted as the governing authority of the CCP and not as
an independent entity on its own.
In short, within the enumeration the CCP is more akin to an "agency" rather than a "Board." Under
the Appointments Clause, agencies and Boards are accorded similar treatment and in both cases,
Congress may vest the power to appoint officers in the "head" of such agency or Board. In CCP's
case, the appointment power may be delegated to the "head" of the CCP.
Board of Trustees is the Head of the CCP
Who then is the "head" of the CCP? The majority suggests that it is the Chairperson of the CCP
board. I respectfully differ but maintain that it is the CCP board itself that is the "head" of the CCP or
acts as such head.
The majority's conclusion is predicated on the premise that the CCP should be classified as a board
(Board) and not an agency. However, as I pointed out, the CCP as a GOCC should instead be
considered as an agency. Indeed, the CCP Board of Trustees cannot exercise any function or power
outside the context of its mandate as the governing authority of the CCP.
Certainly, the answer to the query as to who or which is the head of the CCP should be discerned
primarily from its charter.
As earlier stated, Section 6 of the CCP Charter expressly provides that "the governing powers and
authority of the corporation shall be vested in, and exercised by, a Board [of]
Trustees."20 Even the Rufino Group concedes that the CCP Board of Trustees itself is the "head" of
the CCP, owing to the fact that is the governing body of the CCP.21
Section 8 of the CCP Charter provides the Chairperson with a power of appointment which
nonetheless is limited, incomplete, and subject to confirmation by the CCP Board.
Sec. 8. Appointment of Personnel. The Chairman, with the confirmation of the Board,
shall have the power to appoint all officers, staff and personnel of the Center with such
compensation as may be fixed by the Board, who shall be residents of the Philippines. xxx 22
The Revised Rules and Regulations of the CCP provides the Chairperson with additional powers not
found in the charter, particularly the power to remove and discipline all officers and personnel of the
CCP. Section 3 of the Revised Rules states:
Sec. 3. Chairman of the Board. The Board of Trustees shall elect a Chairman who must be
one of its members, and who shall be the presiding officer of the Board of Trustees, with
power among others, to appoint, within the compensation fixed by the Board, and
subject to confirmation of the Board, remove, discipline all officers and personnel of the

Center, and to do such other acts and exercise such other powers as may be determined
by the Board of Trustees. The Chairman shall perform his duties and exercise his powers
as such until such time as the Board of Trustees, by a majority vote, shall elect another
Chairman. The Chairman shall be concurrently President unless the Board otherwise elects
another President.23
Even as these Revised Rules and Regulations emanate from the CCP Board itself, the limitations
contained therein on the powers to be exercised by the Chairperson highlight, rather than diminish,
the stature of the board as the governing power and authority over the CCP.
This relationship between the CCP Chairperson and the CCP board is aligned with the theory and
practice of corporations. Generally, corporate acts and powers are exercised by the board of
directors of stock corporations or the board of trustees of non-stock corporations. 24 Such corporate
powers may be delegated by charter or by-laws, or even by the board, to particular corporate
officers. However, the authority of officers to bind the corporation is usually not considered inherent
in their office, but is derived from law, the corporate by-laws, or by delegation from the board, either
expressly or impliedly by habit, custom or acquiescence in the general course of business. 25
In the case of the CCP, whatever powers are delegated to the CCP Chairperson, even if incidental to
the exercise of the corporate powers of the CCP, are still subject to confirmation by the Board of
Trustees. The Chairperson cannot by himself/herself enter into contractual relations unless
previously authorized by the Board of Trustees. On the other hand, the Board may, without prior
authority from any other person or entity, enter into such contractual relations. Even those powers
expressly granted to the Chairperson, such as appointment of officers, staff and personnel, are
qualified with the phrase, "subject to/with confirmation of the Board."
Evidently, the powers of the CCP Chairperson are especially circumscribed while the Board of
Trustees is vested with latitude to overturn the discretion of the CCP Chairperson.
In short, for all the prestige that comes with chairing the CCP board, the Chairperson has
limited powers, and his/her acts are subject to confirmation, if not reversal, by the board. The
Chairperson is not the final authority as he/she lacks the final say within the CCP system
itself. It is the Board of Trustees that is the duly constituted governing authority of the CCP,
the statutory delegate vested with the last word over the acts of the CCP itself.
I feel that the majority has succumbed to the temptation in regarding the term "head" as exclusively
referring to a singular personality. Such a reading, I respectfully submit, is unduly formalistic. The
proper construction of "head" should be functional in approach, focusing on the entity that exercises
the actual governing authority rather than searching for a single individual who could be deemed by
reason of title as representative of the CCP. For the objective of the Appointments Clause is to
allow the power to appoint to be exercised by the final governing authority of a department,
agency, commission or board (Board) over its junior officers. It would be patently absurd to
insist that the constitutional intent is to authorize the repose of such appointing power
instead to an individual officer whose acts are still subject to confirmation by a higher
authority within that office. Interpretatio talis in ambiguis semper freinda est, ut eviatur
inconveniens et absurdum.26
Thus, pursuant to the Appointments Clause, Congress may vest on the CCP board, as the head of
the CCP, the power to appoint officers of the CCP. The controversy in this case lies though in the
appointment of the members of the Board of Trustees themselves, and not the particular officers of
the CCP. Thus, the question is this: Can the Board of Trustees be validly empowered by law to
appoint its own members, as it is so under the CCP Charter?

CCP Board Superior in Rank


Over the Individual Trustees
As stated earlier, the Rufino Group concedes that it is the CCP board that is the "head" of the
CCP.27 At the same time, it argues that the law could not validly give unto the members of the CCP
board the authority to appoint their fellow trustees, for the latter would be officers of equal rank, and
not lower rank.28 The majority adopts this latter position of the Rufino Group.29
I respectfully submit that the CCP board may validly appoint its own trustees, as provided for in
Section 6(b) of the CCP Charter, and under the authority of Section 16, Article VII of the
Constitution. In doing so, I recognize that the Board of Trustees as a body, the head of the
CCP, remains superior in rank than any particular member of the board.
Certainly, there can be no argument that an individual member of the CCP board is an entity
separate from the board itself, and that he, the board member, remains under the governing
authority of the CCP board. Generally speaking, the term "inferior officer" connotes a relationship
with some higher ranking officer or officers.30 A board member by himself/herself cannot speak for or
act in behalf of the board as a whole, unless the board authorizes that member to do so. When the
Board of Trustees elects to fill a vacancy in the board, it cannot be said that it exercises the power
appointment to a co-equal office. As stated before, the Board of Trustees is an entity separate from
and superior to any one of its members.
Under Section 6(d) of the CCP Charter, "majority of the Trustees holding office shall constitute a
quorum to do business." The CCP board is thus able to operate and exercise its corporate powers
irrespective of the number of persons sitting on the board at a particular time. In fact, it is possible
that at a given time, the entire CCP board would consist of only one member, who until such time the
vacancies are filled, wields the powers of the Board of Trustees. This possibility is precisely
recognized under Section 6(b) of the CCP Charter, which authorizes the single remaining board
member to fill the remaining vacancies in the board. Unusual as it may seem, it precisely aligns with
the theories behind corporate personality. The remaining board member is authorized to fill the
remaining vacancies for at that moment said member is the Board of Trustees, the governing
authority of the CCP.
The Court has recognized that collective or collegiate bodies outweigh or outrank the individual
members, even if the member is the presiding officer of the body. In GMCR, Inc. v. Bell
Telecommunications,31 the Court upheld a ruling of the Court of Appeals invalidating an order and
other issuances signed solely by the Chairman of the National Telecommunications Commission
(NTC). The Chairman had maintained that he had the exclusive authority to sign, validate and
promulgate all orders, resolutions and decisions of the NTC. The Court disagreed, holding that the
NTC is a collegial body "requiring a majority vote out of the three members of the commission in
order to validly decide a case or any incident therein." 32 It was further noted that the NTC Chairman
"is not the [NTC]. He alone does not speak for and in behalf of the NTC. The NTC acts through a
three-man body, and the three members of the commission each has one vote to cast in every
deliberation concerning a case or any incident therein that is subject to the jurisdiction of the NTC." 33
Even the collegial bodies established under the Constitution exercise their powers collectively, and
not through their presiding officer. Thus, it is the Supreme Court, not the Chief Justice, which has the
power to appoint all officials and employees of the judiciary.34 The Commission on Elections
(COMELEC) and the Commission on Audit (COA) exercise their constitutional powers as a body,
and not through their Chairpersons.35

Even if not denominated as such, the CCP board takes on the same attributes as any collegial body,
and could be recognized as such in the same way that the Court has recognized the Integrated Bar
of the Philippines Board of Governors as a collegial body. The CCP board makes decisions as a
collective body during its regular meetings, presumably after deliberation, the exchange of views and
ideas, and the concurrence of the required majority vote. 36
Still, the majority's theory that Section 6 of the CCP Charter is unconstitutional is anchored in part on
the assumed predicate that it is the only the Chairperson of the CCP board, as "head" of the CCP,
who may be empowered by law to appoint the members of the CCP board. If this premise is
adopted, it would operate as the rule not only in the CCP, but in all GOCCs. Following the majority,
the following kinds of appointment would consequently be unconstitutional:
1) Appointments to the Board of Directors/Trustees of any GOCC by authorities other than the
President of the Philippines or the chairperson of the board. The power to appoint members of the
Board of Directors/Trustees of GOCCs would exclusively belong to the President or the Chairperson
of the Board, notwithstanding any statutory mandate through a charter providing the contrary.
2) Appointments of other officers and officials of GOCCs by authorities other than the President of
the Philippines or the chairperson of the board. Even if the Board of Directors or Trustees is duly
constituted by charter as the governing authority of the GOCC, the majority would deprive such
governing authority any appointing power, as such power could purportedly be vested only in the
President or the chairperson of the board.
3) Ex-officio appointments to the boards of GOCCs. The charters of several GOCCs mandate that
certain persons sit in the Board of Directors/Trustees by reason of their office, or in an exofficio capacity. Such ex-officioappointments are not expressly provided for in the Constitution.
Following the majority's literalist reading of the Appointments Clause, ex-officio appointments are
similarly invalid as they do not derive from the exclusive appointment power of the President or the
chairperson of the board.
Again, with all due respect, the rationale is predicated on a flawed interpretation of the terms "head"
and "board" (Board) as used in Section 16, Article VII, a reading that is alien to the common
understanding of corporate personality, as well as actual corporate practice. On the contrary, the
procedure outlined in Section 6 of the CCP Charter, vesting in the CCP Board of Trustees the
authority to appoint the members of the board, is congruent with constitutional order. It should be
stressed anew that the CCP Board itself is the head of the CCP and that any individual member of
the board is lower in rank than the board itself.
It is de rigueur for directors of a corporation to fill vacancies in their own Board where such power is
conferred upon them by statute or charter or by by-law.37 Modern statutes typically provide that
vacancies in the Board, regardless of the cause, may be filled up by the Board itself, side by side
with an identical power vested in the shareholders.38 Among them is the U.S. Model Corporation
Business Act of 1984 which acknowledges that vacancies in the board of directors may be properly
filled by the Board itself.39 The CCP precisely has that power conferred to it by statute, the CCP
charter that is.
Perhaps this question may arise: if the CCP board, as head of the CCP, may be legally authorized to
appoint its own members, they being officers lower in rank than the board, who then may appoint the
CCP board itself, as distinguished from individual vacancies therein? It should be noted though that
it is settled rule that the term "appointment" is in law equivalent to "filling a vacancy." 40 A vacancy
exists when there is no person lawfully authorized to assume and exercise at present the duties of
the office.41 Accordingly the appointment power cannot be validly exercised unless there is a vacancy

to be filled. In the case of the CCP, its charter provides that the Board of Trustees subsists even if
there is only one remaining board member left.42 Hence, the CCP board can only be considered as
truly vacant if there is not even one member left sitting on the board. In that case, the CCP Charter
authorizes the President to appoint the new CCP board to replace the board that no longer
exists,43by filling the vacancies in the board.
Yet pursuant to the CCP Charter, it still is the President that appoints the Board of Trustees when
such board is vacant. The statutory impediment to such appointing authority is the recognition of
very limited circumstances under which the CCP board may be considered as truly vacant.
During deliberations on these petitions, some distress was raised over the prospect that in case only
one person remained on the CCP Board of Trustees, that one person is empowered to appoint the
other members of the Board. Perhaps the notion may strike as counterintuitive, yet it is perfectly
valid under legal consideration considering that this sole remaining member stands as the Board
itself, and not just an individual member thereof. This setup adheres to sound theory that a Board of
Directors/Trustees retains collective force, no matter the number of persons sitting thereon, so long
as the quorum requirements are satisfied.
Indeed, the idea of a one-person board of directors is hardly a flight of whimsy under modern
corporation law. Consider the U.S. state of Delaware, the state most associated with
incorporation. With over half of publicly traded American corporations and over 60% of all
Fortune 500 companies incorporated in Delaware[44], it among all the American states, has the
greatest public interest in the oversight or regulation of corporations.Yet the Delaware General
Corporation Law expressly authorizes a corporation to constitute a board of directors
consisting of only one (1) member.[45] The choice, as expressed in the by-laws or the certificate
of incorporation, is up to the corporation. When a board of 1 director is so authorized, "the 1
director shall constitute a quorum."46Certainly, there is nothing so forlorn with the statutory
prescription of the CCP charter that admits to the possibility of only one trustee acting as the Board.
The law of Delaware, the corporate hub of America, sufficiently defeats any supposition that the
possibility of a one-person CCP Board of Trustees offends good customs, morals, law or public
policy.
Our own Corporation Code does not permit one-person Board of Directors for private
corporations,47 yet it concedes that corporations created by special laws or charters are governed
primarily by the provisions of the charter creating them.48 The determination of the quorum
requirement for chartered corporations is exclusively the prerogative of the legislature, which can
very well impose a one-person board of directors or, as in the case of CCP, permit a situation
whereby a lone remaining director would be empowered to act as the board.
The majority states that this statutory setup of the CCP "makes [it] a self-perpetuating entity." But the
CCP is really no different from private corporations whose boards of directors are, under the
Corporation Code, permitted to fill vacancies in the Board themselves for as long as the remainder of
the board still constitute a quorum.49Considering the clear legislative intent to accord the CCP with a
significant degree of independence, with its chartered guarantee of "autonomy of policy and
operation,"50 the notion should give no offense at all. Yet even if there is wisdom or cause in
preventing the "self-perpetuation" of the CCP Board, the solution lies in legislative amendment. The
majority cannot supplant legislative prerogatives by merely doing away with provisions of law that
meet its aversion. Moreover, short of amending the CCP Charter there are enough anti-graft laws,
government audit controls and other administrative safeguards to check abuse in office and ensure
accountable governance.

My own conclusion is that the means prescribed by the CCP Charter in the appointment of the
members of the CCP board is in accordance with the Appointments Clause, specifically the provision
therein that authorizes Congress to empower the President, the courts and the heads of
departments, agencies, commissions or boards (Boards) to appoint officers of lower rank. The CCP
is an agency, not a Board, and its head is its Board of Trustees. The CCP board is superior in rank
than any of its particular members, and it may thus be authorized by law to fill vacancies by
appointing new members of the board. Should the CCP board be totally vacant, owing to the fact
that no person sits on the board at a given time, then the President is authorized by law to fill the
vacant CCP board by appointment.
While the members of the Endriga Group were "appointed" by President Ramos, who had no
authority to do so, it is also uncontested that the Endriga Group were subsequently elected by the
CCP board to sit on the Board. For that reason, not their "appointment" by President Ramos, they
could be deemed as having validly assumed their office upon their election to the board in 1995, for
the statutory term of four (4) years.
Executive Control and Statutory Restrictions Thereon
There is an even more disturbing implication to the present ruling which the majority barely touches
upon. By ruling against the Endriga Group, and sanctioning their replacement by President Estrada
even though their statutory term had yet to expire, the majority in effect has ruled that the
President may remove officials whose terms have been fixed by law even prior to the
cessation of the terms in office. The legal rationale for this precipitate new rule is not precisely
explained. Pointedly though, the majority refers to the power of the President of executive control to
bolster its conclusion, characterizing such power as "another constitutional impediment to the
implementation of Section 6(b) and (c)" of the CCP Charter.
The power of the President to maintain executive control over executive departments, bureaus and
offices is constitutionally mandated by the Executive Control Clause. 51 Yet as earlier stressed, the
power of the President to make appointments is governed by a different provision, the Appointments
Clause which is complete by itself. If executive control is extended to bear on the power of the
President to make appointments in the executive branch by further expanding it, then the
Appointments Clause would be rendered useless. Clearly, the Constitution authorizes Congress to
vest the power to appoint lower-ranked officials to the heads of departments, agencies, commissions
or boards, (Boards). To insist that such power of appointment so vested in an agency head is
nonetheless circumscribed by executive control would render the provision nugatory.
Yet, may executive control be utilized to justify the removal of public officers within the executive
department notwithstanding statutory restrictions thereon, such as the prescription of a fixed term of
office? To declare that it does would be equivalent to saying that executive control authorizes the
President to violate the laws passed by Congress. And that is not what the Constitution says.
The Executive Control Clause, which enshrines the presidential power of executive control, actually
prescribes two (2) functions to the President.
Sec. 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.
While the majority understandably lays emphasis on the first sentence of the Executive Control
Clause, the second sentence is of equal importance. It emphasizes the cardinal principle that the
President is not above the laws enacted by Congress and is obliged to obey and execute these

laws. The duty of faithful execution of laws is enshrined not only in the Constitution, but also in the
oath of office of the President and Vice-President.52
It is clear that the twin duties prescribed under the Executive Control Clause are of equal value. At
very least, they should be construed in harmony, not antagonism, to each other, so that the power of
control that the President may exercise over executive departments, bureaus and offices should still
stay within the ambit of faithful execution of the Constitution and the laws of the land which the
Constitution itself ordains.
I submit that the members of the CCP board are shielded by law from arbitrary removal by the
President, even if is sought to be justified under the aegis of executive control. The traditional view
that "the power of removal of executive officers [is] incident to the power of appointment" 53 has since
been severely undercut by the U.S. Supreme Court, 54 and is of limited application in this jurisdiction
in light of the constitutional guarantee to the security of tenure of employees in the civil service. 55 The
notion that executive control authorizes the President to remove the members of the CCP board at
his pleasure contravenes not only the CCP Charter but the Constitution itself, not to mention our civil
service laws.
CCP Embraced Under the Civil Service
Section 2(1), Article IX-B of the Constitution states that "[t]he civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government, including government owned or
controlled corporations with original charters". It appears to have been the deliberate intent of
the framers of the 1987 Constitution, in specifying the phrase "with original charters," to exclude from
civil service coverage those GOCCs without original charters, meaning those incorporated under the
general corporation law.56 Yet undoubtedly, the CCP was created through an original charter, and is
hence covered by the civil service by mandate of the Constitution. This point has significant impact
on the resolution of this case.
It can be advanced that Ang-Angco v. Castillo57 settles the question in favor of the Endriga Group. In
that case, President Garcia, through his Executive Secretary, rendered a ruling finding a Collector of
Customs guilty of prejudicial conduct and considering him "resigned effective from the date of
notice."58 The action was justified by virtue of the President's power of control over all executive
departments, bureaus and offices as provided for in the 1935 Constitution. Ang-Angco countered
that the Civil Service Act of 1959, a legislative enactment, vests in the Commissioner of Civil Service
the original and exclusive jurisdiction to decide administrative cases against officers and employees
in the classified service such as himself; and that his subsequent removal by order of the President
violated the Civil Service Act. The Court agreed with Ang-angco, holding that such "law which
governs the action to be taken against officers and employees in the classified civil service is binding
upon the President."59
The Court explained why the power of executive control could not supersede a statutory enactment
such as the Civil Service Act of 1959:
Let us now take up the power of control given to the President by the Constitution over all
officers and employees in the executive department which is now invoked by respondents as
justification to override the specific provisions of the Civil Service Act. This power of control is
couched in general terms for it does not set in specific manner its extent and scope. Yes, this
Court in the case of Hebron vs. Reyes, supra, had already occasion to interpret the extent of
such power to mean "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter" , to distinguish it from the power of general supervision

over municipal government, but the decision does not go to the extent of including the power
to remove an officer or employee in the executive department. Apparently, the power
merely applies to the exercise of control over the acts of the subordinate and not over
the actor or agent himself of the act. It only means that the President may set aside the
judgment or action taken by a subordinate in the performance of his duties. 60
xxx
Further, the Court in Ang-Angco chose to avoid the ungainly clash between the constitutional power
of executive control and the constitutional guarantee of security of tenure to those in the civil service,
thus:
[T]he strongest argument against the theory of respondents is that it would entirely nullify
and set at naught the beneficient purpose of the whole civil service system implanted in this
Jurisdiction which is to give stability to the tenure of office of those who belong to the
classified service in derogation of the provision of our Constitution which provides that "No
officer or employee in the civil service shall be removed or suspended except for cause as
provided by law" (Section 4, Article XII, Constitution). Here, we have two provisions of our
Constitution which are apparently in conflict, the power of control by the President
embodied in Section 10 (1), Article VII, and the protection extended to those who are
in the civil service of our government embodied in Section 4, Article XII. It is our duty
to reconcile and harmonize these conflicting provisions in a manner that may be given
to both full force and effect and the only logical, practical and rational way is to
interpret them in the manner we do it in this decision. As this Court has aptly said in the
case of Lacson vs. Romero:
". . . To hold that civil service officials hold their office at the will of the
appointing power subject to removal or forced transfer at any time, would
demoralize and undermine and eventually destroy the whole Civil Service
System and structure. The country would then go back to the days of the old
Jacksonian Spoils System under which a victorious Chief Executive, after the
elections could if so minded, sweep out of office, civil service employees differing in
political color or affiliation from him, and sweep in his political followers and
adherents, especially those who have given him help, political or otherwise." (Lacson
vs. Romero, 84 Phil., 740, 754)61
At the same time, the Court considered the difference between the power of control exercised by
President Garcia over his direct appointees vis--vis that over employees belonging to the classified
service.
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 (Lacson vs. Romero, supra), but not with regard to those officers and
employees who belong to the classified service for as to them that inherent power cannot be
exercised. 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 department" (Article VII, Section 10 (3), Constitution). 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
constitutional authority.62

Evidently, Ang-Angco lays the precedent for distinguishing between officials whose tenure are
protected under the civil service law, and those who enjoy no such statutory protection. The 1987
Constitution likewise makes it explicit that GOCCs with original charters such as the CCP are
embraced under the civil service. Reference is thus necessary to the provisions of the present civil
service law, particularly the Administrative Code of 1987.
The Administrative Code restates that GOCCs with original charters are within the scope of the civil
service.63 It further classifies positions in the civil service into career service and non-career
service.64 Generally, personnel of GOCCs are classified as career service, provided that they do not
fall under the non-career service. On the other hand, the Administrative Code provides that noncareer service employees under the Administrative Code are characterized by:
The Non-Career Service shall be characterized by (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 employment was made.
Included in the non-career service are:
1. Elective officials and their personal or confidential staff;
2. Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of
the President and their personal confidential staff(s);
3. Chairman and Members of Commissions and boards with fixed terms of office and their
personal or confidential staff;
4. Contractual personnel or those whose employment in the government is in accordance
with a special contract to undertake a specific work or job requiring special or technical skills
not available in the employing agency, to be accomplished within a specific period, which in
no case shall exceed one year and performs or accomplishes the specific work or job, under
his own responsibility with a minimum of direction and supervision from the hiring agency;
5. Emergency and seasonal personnel.65
Since the members of the CCP board are appointed to a fixed tenure, the four (4)-year period
specified by the CCP Charter, they may be properly considered as non-career service. Yet, even if
these members fall within non-career service, their right to security of tenure is guaranteed both by
the Constitution and by law.
Section 2. xxx
(3) No officer or employee of the civil service shall be removed or suspended except for
cause provided by law.66
xxx
Sec. 46. Discipline: General Provisions. (a) No officer or employee in the Civil Service shall
be suspended or dismissed except for cause as provided by law and after due process. 67

What are thus the implications of the constitutionally guaranteed right to security of tenure to
non-career service officials of GOCCs with original charter, particularly those whose
appointments are for a fixed term? Simply put, these officials cannot be removed from office
before the expiration of their term without cause, or for causes other than those specified by
either the GOCC's charter, the Administrative Code, or other relevant civil service laws.
Otherwise, their removal is unconstitutional.
An appointing power cannot arbitrarily remove an officer if the tenure is fixed by law, or if the officer
is appointed to hold during the pleasure of some officer or board other than that appointing him. 68 In
the absence of any provision for summary removal, an individual appointed to a post for a fixed term
may be removed prior to the term's expiration only for cause. It is the fixity of the term that destroys
the power of removal at pleasure.69
Under the CCP Charter, the term of a trustee may be terminated "due to termination of term,
resignation, incapacity, death or other cause as may be provided in the By-laws." 70 These are the
causes by law which may cause the dismissal of a member of the CCP board. In this case, the right
of the Rufino Group to sit on the CCP board is premised on the claim that the members of the
Endriga Group vacated their seats before the expiration of the four (4)-year term owing to the
conditionalities made by President Ramos to their appointment. I have already pointed out that
President Ramos did not have the authority to appoint the Endriga Group, but that they still were
validly elected to the Board upon vote by the CCP board. Evidently, the conditionality restricting the
Endriga Group to serve for a period less than the statutory term of four (4) years is invalid, whether
or not it was attached to a valid appointing authority.
Clearly then, the power of the President to remove appointed officials of GOCCs with original
charters, grounded as it could be in the power of "executive control" in the Constitution, is
circumscribed by another constitutional provision. There is no showing that the Endriga Group was
validly removed for legal cause before the expiration of their four (4)-year term. Hence, their removal
is unconstitutional, as is the appointment of the Rufino Group to fill seats to the CCP board that had
not yet become vacant.
CCP Governed by its Statutory Charter
Special considerations must likewise be appreciated owing to the fact that the CCP is a GOCC with
an original charter. The Constitution authorizes the creation or establishment of GOCCs with original
charters.71 Section 6 of the Corporation Code states that "[c]orporations created by special laws or
charters shall be governed primarily by the provisions of the special law or charter creating them or
applicable to them."72
Obviously, since the CCP Charter mandates a four (4)-year term for the members of the CCP board,
such condition is binding as a law governing the CCP. Hence, any measure diminishing a duly
elected trustee's right to serve out the four (4)-year term solely on the basis of the President's
discretion or pleasure runs contrary to law. This is a simple way to look at the issue, and its
starkness does not detract from its inherent validity. Still, a deeper examination into the question
supports the same conclusion.
There is no question that a GOCC with original charter falls within the executive department, hence
generally subject to executive control. At the same time, the fact that its creation is sourced from
legislative will should give cause for pause. GOCCs may be created by the State either through the
legislative routethe enactment of its original charter, or the executive routeits incorporation with
the Securities and Exchange Commission. The discretion to incorporate unchartered government
units falls solely with the executive branch, but the discretion in chartering GOCCs is purely

legislative. In theory, a chartered GOCC can come into being even against the will of the Chief
Executive, as is done if Congress overrides an executive veto of a bill chartering a particular GOCC.
Our laws similarly sustain the theoretical underpinning that a chartered GOCC is a creature of the
legislative branch of government, even as it falls within the executive branch. As noted earlier,
Section 6 of the Corporation Code states that "[c]orporations created by special laws or charters
shall be governed primarily by the provisions of the special law or charter creating them or applicable
to them"73 Thus, it is Congress, and not the executive branch, which determines a chartered GOCC's
corporate structure, purposes and functions. This basic point should be beyond controversy. Yet, the
majority implies that Congress cannot limit or curtail the President's power of control over the
Executive branch, and from that context, declares that a law authorizing the CCP Board of Trustees
to appoint its own members runs afoul with the President's power of control. Evidently, there is a
looming clash between the prerogative of the President to exercise control over the executive
branch, and the prerogative of Congress to dictate through legislation the metes and bounds of a
government corporation with original charter.
The scope of the potential controversy could also extend not only to GOCCs with original charters,
but also to other public offices created by law. Outside of those offices specifically created by the
Constitution itself, the creation and definition of the bureaucracy that constitutes the executive
branch of government is an incident of the legislative power to make laws. The power to create
public offices is inherently legislative,74 and generally includes the power to modify or abolish
it.75
Laws that create public offices or GOCCs are no different from other statutes in that they are all
binding on the Chief Executive. Indeed, while Congress is vested with the power to enact laws, the
President executes the law, executive power generally defined as the power to enforce and
administer the laws.76 The corresponding task of the Chief Executive is to see that every government
office is managed and maintained properly by the persons in charge of it in accordance with
pertinent laws and regulations. Corollary to these powers is the power to promulgate rules and
issuances that would ensure a more efficient management of the executive branch, for so long as
such issuances are not contrary to law.77
Since the creation of public offices involves an inherently legislative power, it necessarily follows that
the particular characteristics of the public office, including eligibility requirements and the nature and
length of the term in office, are also for legislative determination. Hence, laws creating public offices
generally prescribe the necessary qualifications for appointment to the public office and the length of
their terms. The wisdom of such matters is left up to the legislative branch. At the same time, the
power of appointment is executive in character, and the choice of whom to appoint is within the
discretion of the executive branch of government. This setup aligns with traditional notions of checks
and balances the choice whom to appoint resting with the executive branch, but proscribed by the
standards enacted by the legislative. Persons to be appointed to a public office should possess the
prescribed qualifications as may be mandated by Congress.
The same setup governs the removal of officers from public office. The power to remove a public
officer is again executive in nature, but also subject to limitations as may be provided by law.
Ordinarily, where an office is created by statute, it is wholly within the power of Congress, its
legislative power extends to the subject of regulating removals from the office. 78
Even the very definition of "executive control" under the Administrative Code concedes that the
general definition of control may yield to a different prescription under a specific law governing
particular agencies.

SECTION 38. Definition of Administrative Relationships. Unless otherwise expressly


stated in the Code or in other laws defining the special relationships of particular agencies,
administrative relationships shall be categorized and defined as follows:
(1) Supervision and Control. Supervision and control shall include authority to act directly
whenever a specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify
acts and decisions of subordinate officials or units; determine priorities in the execution of
plans and programs. Unless a different meaning is explicitly provided in the specific
law governing the relationship of particular agencies the word "control" shall encompass
supervision and control as defined in this paragraph.79
The charters of GOCCs are specific laws with specific application to the GOCCs they govern. The
Administrative Code itself affirms that "control," as defined by a particular charter, supersedes the
general definition under the Code with respect to the GOCC governed by the charter. This
concession is recognition of the primacy of legislative enactments in the constitution and definition of
public offices within the executive branch of government.
The Authority of Congress to Impose Limitations
On the Exercise of Executive Control
There is another worrisome implication in the majority's reliance on executive control. It connotes
that the legislative branch of government has no power to legislate any form of controls on executive
action, thus effectively authorizing the President to ignore the laws of Congress. This significant
diminution of the plenary power of the legislature to make laws guts the power of Congress to check
and balance the executive branch of government.
The duty of the President "to faithfully execute the laws of the land" places the Chief Executive under
the rule of law.80 The President cannot refuse to carry out a law for the simple reason that in his/her
judgment it will not be beneficial to the people.81 Indeed, the exercise of every aspect of executive
power, whether residual, express, or delegated, is governed by one principle beyond compromise
that such powers be in accordance with law. Executive control, taken to its furthest extreme that it
warrants the unchecked exercise of executive power, can be used to justify the President or his/her
subalterns in ignoring the law, or disobeying the law.
I submit that as a means of checking executive power, the legislature is empowered to impose
reasonable statutory limitations in such exercise, over such areas wherein the legislative jurisdiction
to legislate is ceded. As stated earlier, among such areas within the province of Congress is the
creation of public offices or GOCCs. Even as such public offices or GOCCs may fall within the
control and supervision of the executive branch, Congress has the power, through legislation, to
enact whatever restrictions it may deem fit to prescribe for the public good.
Indeed, there are appreciable limits to what restrictions Congress may impose on public offices
within the Executive Branch. For example, a law prescribing a fixed term for a Cabinet Secretary
which may extend beyond the President's term of office is of dubious constitutional value, since
Cabinet departments are recognized by law and tradition as extensions of the President, and their
heads as alter egos thereof. This concession likewise finds constitutional enshrinement in the fact
that the Appointments Clause vests solely in the President the power to appoint members of the
cabinet, subject only to confirmation by the Commission on Appointments. I likewise recognize that
in the absence of statutory restrictions, the President should be given wide latitude in the selection
and termination of presidential appointees, and discretion to review, reverse or modify the acts of
these officials.

GOCCs with original charters pose special considerations. The very fact that they were created by
legislative enactments denotes the presence of statutory restrictions. At the same time, while
remaining agencies of the State, they are in possession of independent juridical personality
segregate from that of the Government. Indeed, the very corporate character of GOCCs implies a
legislative intent to delegate sovereign functions to an entity that, in legal contemplation, is endowed
with a separate character from the Government. The congressional charter of a GOCC should be
recognized as legislative expression of some degree of independence from the Government reposed
in the GOCC. The charter itself is an assertion of a GOCC's statutory independence from the other
offices in the executive branch.
The comments of Constitutional Commissioner Fr. Joaquin Bernas on the power of control over
GOCCs warrant consideration:
It is submitted [that] the Executive's power of control over government-owned corporations,
which in legal category are not on the same level as executive departments, bureaus, or
offices, is not purely constitutional but largely statutory. The legislature may place them
under the control of the Executive where their functions "partake of the nature of government
bureaus and offices." 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.82
Even with respect to other public offices, if Congress deems it necessary to vest such a particular
public office with a degree of independence from the executive branch, then the legislative
prescription of conditions to the appointment/removal, including the fixing of a term of office, should
generally be upheld. Indeed, Congress has the right to create public offices. While falling under the
executive branch of government, the legislature may find in its creation such a significant public
purpose as to be accorded a degree of independence from the executive department. This may
especially hold true for quasi-judicial agencies tasked with determining competing claims lodged by
private persons against the executive department. In the United States, the Supreme Court has
upheld the authority of Congress "in creating quasi-legislative or quasi-judicial agencies, to require
them to act in the discharge of their duties independently of executive control and that the
authority includes, as an appropriate incident, power to fix the period during which they shall
continue in office, and to forbid their removal except for cause in the meantime." 83
Unlike the "necessary and proper" clause of the U.S. Constitution, 84 there is no express
characterization in our Constitution as to what laws our legislature should enact. This should not
dissuade the Court from recognizing that Congress has the right to enact laws that are for the public
good, even if they impair the comfort of private citizens or the officials of government. There are valid
legislative purposes for insulating certain agencies of the State from unfettered executive
interference. Congress may create agencies under the executive branch tasked with investigatory or
fact-finding functions, and accord them a necessary degree of independence by assuring tenure to
its members, for example. I submit that such prerogative of Congress is aligned with the principle of
checks and balances, under which the legislature is empowered to prescribe standards and impose
limitations in the exercise of powers vested or delegated to the President. The ruling in the majority
would sadly impair the right of the legislature to impart public offices it creates with safeguards that
ensure independence from executive interference should Congress deem that such independence
serves a necessary public purpose.
The implications are similarly ruinous to the independent corporate personality of GOCCs as
determined and fleshed out by Congress. Their charters are legislative enactments beyond the pale
of the President to amend or repeal. In effect, there is a seeming new rule that the President

may ignore or countermand statutory limitations contained in the charters of GOCCs. The
President may thus abolish chartered GOCCs at whim, appoint persons Congress may have
deemed as unqualified to positions in the GOCC, alter the corporate purposes for which the
GOCC was established, all in the guise of executive control. Executive control may similarly
be justified to alter or deprive statutory rights which may have been vested by Congress to
private persons via the corporate charter. The power of Congress to charter government
corporations would be rendered worthlessan intent hardly justified by the Constitution,
which allocated the power to create GOCCs to Congress.85
CCP Charter a Means of Promoting
An Autonomous Policy on the Arts
Odd as the structure of the CCP may be, its atypical nature was not enacted for the sake of
uniqueness, but for laudable public purposes which the Court should acknowledge. The CCP
Charter, apart from recognizing the CCP's corporate personality, goes as far as mandating that the
CCP "enjoy[s] autonomy of policy and operation."86 While the inherent right of Congress to create
public offices in general, and specifically to charter GOCCs sufficiently justifies the constitutionality of
Section 6 of the CCP Charter. Still, if it is necessary to inquire into the public purpose for prescribing
the unique setup of the CCP, I submit that the mandated autonomy of the CCP is in accord with
constitutional principles that should be upheld and promoted.
The Constitution provides that "arts and letters shall enjoy the patronage of the State" 87 and "[t]he
state shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture
based on the principle of unity in diversity in a climate of free artistic and intellectual
expression."88 More crucially, artistic and intellectual expression is encompassed in free expression
guaranteed by the Bill of Rights.89 Clearly, art and culture, in constitutional contemplation, is not the
product of collectivist thought like the prescribed social realism in Stalin's Soviet Union, but of free
individual expression consonant to the democratic ideal.
The assurance of policy and operational autonomy on the CCP is aligned with these constitutional
purposes. Government-sponsored art is susceptible to executive diktat, especially to countermand
unpopular art or to dilute its potency to the point of innocuousness. Indeed, executive control left
unhampered could allow the executive branch to impose its own notions of what art and culture
should be, and to block the art forms that do not conform to its vision. Given the paramount
constitutional protection guaranteed to artistic expression, such executive interference would
contravene constitutional rights. Such interference could be enforced by the executive through a
Board of Directors whose subservience could be guaranteed by their staying in office solely by
pleasure of the President. Even without the autonomy granted to the CCP in its charter, the CCP as
a government agency would still be precluded from denigrating any person's right to free expression.
But the fact that the legislative charter did put into operation safeguards that promote a climate of
artistic independence should be lauded and upheld as within the prerogative of the legislature to
enact. There is no higher public purpose in the formulation of laws than to promote constitutional
values.
I could not improve on the following disquisition of Justice Puno on the important role the CCP has
played in our development as a nation:
The CCP Complex is the only area in the Philippines that is fully devoted to the growth and
propagation of arts and culture. It is the only venue in the country where artists, Filipino and
foreign alike, may express their art in its various forms, be it in music, dance, theater, or in
the visual arts such as painting, sculpture and installation art or in literature such as prose,
poetry and the indigenous oral and written literary forms. The theaters and facilities of the

Complex have been utilized for the staging of cultural presentations and for the conduct of
lectures and demonstrations by renowned visiting artists. The wide open spaces of the
Complex are the only open spaces in Metropolitan Manila that have been used to
accommodate huge crowds in cultural, artistic and even religious events.
But the fulfillment of CCP's mandate did not start and end in Manila Bay. The CCP, through
its Board of Trustees, has reached out to the provinces through programs, scholarships and
national competitions for young artists. It has helped young artists hone their craft and
develop their creativity and ingenuity. It has also exposed the Filipino artists to foreign art
and advanced instruction, and thereby develop world-class artists, earning for the Philippines
the respect and admiration of other countries. The CCP has likewise exposed the ordinary
Filipino to the national culture. It has enhanced public interest in Philippine art in various
forms, in our history, in our indigenous and modern culture, and at the same time, enriched
us with the culture of other countries. The CCP has indeed emerged as a dynamic force in
the promotion of the country's artistic and cultural heritage and the development of new and
modern art forms. Through the years, it has helped raise the Filipino consciousness to our
nationhood, and in the process, inculcated love for our country The state recognizes the
vital role arts and culture play in national development. Indeed, a nation that would give up
its cultural patrimony in exchange for economic and material pursuits cannot but be doomed
as a "people without a soul."90 The Cultural Center of the Philippines has helped us capture
this "soul."91
Art thrives within an atmosphere of free thought. The CCP Charter, by ensuring political and
operational autonomy, ferments expression free from prior restraint or subsequent punishment from
the executive department. There is a constitutional purpose to the independence attendant to the
unique corporate structure of the CCP. There is constitutional authority for the legislature to charter a
government corporation with reasonable safeguards of independence from the executive branch.
And there is a constitutional duty for the President to obey and execute the laws enacted by
Congress.
Conclusion
The ruling of the Court today is boon for those quarters which wish to concede to the presidency as
much power as there can be. Sadly, it comes at the expense of the time-honored prerogative of
Congress to legislate laws. The power of Congress to enact legislative charters with any sort of
restrictions that would be enforced is now severely put in doubt. The power of Congress to fix the
terms of the offices it creates is now controvertible. The President has been given the green light to
remove at will officials whose terms of offices are set by law, without regard to the constitutional
guarantee of security of tenure to these officials. All these wrought simply because for the majority,
the CCP Board of Trustees somehow transubstantiated itself into the CCP itself.
I have consistently advocated a generous interpretation of presidential authority, owing to my firm
belief in the potency of the inherent and residual powers implicit in the highest office of the
land.92 Still, the Constitution is allergic to an omnipotent presidency, and thus, the law is the limit.
This is a live tiger that the majority has set loose today, one utterly capable of inflicting great pain on
the delicate balance that safeguards the separation of powers.
DANTE O. TINGA
Associate Justice

Footnotes
1

See Section 2 of PD 15.

PD 15, Sec. 2(b).

Id., Sec. 2(c) to (e).

Id., Sec. 3 in relation to Sec. 6.

Id.

Zenaida R. Tantoco had expressed "utter lack of interest" in the case since she did not take
her oath of office or assumed the position of CCP trustee at any time.
6

Penned by Associate Justice Conchita Carpio Morales (now Associate Justice of this
Court), with Associate Justices Artemon D. Luna and Bernardo P. Abesamis, concurring.
7

Rollo (G.R. No. 139554), pp. 100-101.

Later amended by Presidential Decree Nos. 179, 1444, 1815, 1825, and Executive Order
No. 1058 dated 10 October 1985.
9

10

CA rollo, p. 331-A.

11

Id.

12

Id.

13

Rollo (G.R. No. 139554), pp. 28-31.

14

Rollo (G.R. No. 139565), p. 19.

15

Rollo (G.R. No. 139554), p. 714

Joya v. Presidential Commission on Good Government, G.R. No. 96541, 24 August 1993,
225 SCRA 568.
16

17

Id.

18

Id.

The requisites before courts will assume jurisdiction over a constitutional question are (1)
there must be an actual case or controversy involving a conflict of rights susceptible of
judicial determination; (2) the constitutional question must be raised by a proper party; (3)
the constitutional question must be raised at the earliest opportunity; and (4) the resolution of
the constitutional question must be necessary to the resolution of the case. (Board of
Optometry v. Hon. Colet, 328 Phil. 1187 [1996])
19

20

See Calderon v. Carale, G.R. No. 91636, 23 April 1992, 208 SCRA 254.

21

Endencia v. David, 93 Phil. 696 (1953).

22

See Santos v. Macaraig, G.R. No. 94070, 10 April 1992, 208 SCRA 74.

There is a fifth group of officers whose appointments are vested by the Constitution in the
Supreme Court and the Constitutional Commissions. (Constitution, Art. VIII, Sec. 5[6] and
Art. IX-A, Sec. 4)
23

24

It reads:

The President shall nominate and, with the consent of a Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval
captain and all other officers of the Government whose appointments are not herein
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 President alone,
in the courts, or in the heads of departments. (Emphasis supplied)
II J. Bernas, The Constitution of the Republic of the Philippines, A Commentary 194-195
(1988).
25

26

THE PRESIDENT. Commissioner Bennagen is recognized.


MR. BENNAGEN. Anterior amendment on page 8, line 1, Madam President, which I
indicated during the period of interpellations regarding the use of the word "inferior." I
understand from the Commissioners that we can delete "inferior" without sacrificing
its meaning.
MR. REGALADO. So line 1 would now read: "of OTHER officers LOWER IN RANK."
MR. BENNAGEN. Thank you, Madam President.
MR. REGALADO. The Committee accepts the amendment.
THE PRESIDENT. The Committee has accepted the amendment.
Is there any objection to change "inferior" to "OTHER officers "LOWER IN RANK"?
(Silence) The Chair hears none; the amendment is approved.
Let us go back to the amendment of Commissioner de los Reyes.
MR. DE LOS REYES. Does the Committee accept my proposed amendment?
MR. REGALADO. The amendment of Commissioner de los Reyes is to change
"courts" to "MEMBERS OF THE JUDICIARY."
FR. BERNAS. It is a little vague if we just say "in the MEMBERS OF THE
JUDICIARY" because we have collegiate and noncollegiate bodies. So for instance,
if we take the case of the Supreme Court when we say "MEMBERS OF THE
JUDICIARY," which of the members of the Supreme Court would have the appointing
authority?

MR. DE LOS REYES. But the point is that the first sentence refers to the President
alone; it does not say "executive." And the last portion refers to "the heads of
departments" because these are persons who appoint, but the middle portion refers
to "courts" which do not appoint. How can the courts appoint?
FR. BERNAS. How about "in the HEADS OF courts"?
THE PRESIDENT. Commissioner Concepcion is here now, may we seek his opinion
on this matter? May we ask Commissioner Regalado to kindly inform Commissioner
Concepcion of the issue.
Commissioner Concepcion is recognized.
MR. CONCEPCION. I suppose that insofar as collegiate courts are concerned,
certain rules will be adopted by the Supreme Court. Under the present setup, court
employees are actually appointed by the Chief Justice of the Supreme Court. I
suppose in this case, when we speak of courts, it refers to the judges presiding in
courts. After all, the presiding judge acts in behalf of the court. These are court
employees, and whoever presides performs the administrative functions
corresponding to his particular station. Insofar as clerks of courts are concerned,
generally, they are appointed by the Supreme Court in agreement with collegiate
courts through the passage of a resolution that is deemed to be an appointment by
the court concerned. So I think we can retain the word "courts" since it has been
used for so long in the past, and it has an established connotation.
MR. DE LOS REYES. I submit if that is the explanation, although I find the wordings
inconsistent. It refers to the President and heads of departments as officers, but it
does not say "or in the Executive Department." The middle portion refers to courts,
and I do not think the courts can appoint. But if the Committee wants to retain this in
this particular Article, I submit.
Thank you, Madam President.
THE PRESIDENT. Thank you.
Is Commissioner de los Reyes insisting on his amendment?
MR. DE LOS REYES. I am not insisting, Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. On page 8, line 3, change the period (.) after "departments" to a
comma (,) and add AGENCIES, COMMISSIONS, OR BOARDS. This is just to
complete the enumeration in the 1935 Constitution from which this additional clause
was taken.
THE PRESIDENT. Does the Committee accept?
MR. SARMIENTO. Just a point of clarification, Madam President. I think this was
taken from the 1973 Constitution. The 1935 Constitution speaks only of "heads of
departments."

MR. DAVIDE. Yes, it is the 1973 Constitution rather.


THE PRESIDENT. Does the Committee need time to consider?
MR. SUMULONG. We accept the amendment.
MR. ROMULO. The Committee has accepted the amendment, Madam President.
THE PRESIDENT. Is there any objection to the addition of the words "AGENCIES,
COMMISSIONS, OR BOARDS" on line 3, page 8? (Silence) The Chair hears none;
the amendment is approved. (II Record, Constitutional Commission 522-523 [31 July
1986])
For the role of the deliberations of the Constitutional Commission in determining the
framers' intent, see Development Bank of the Philippines v. COA, 424 Phil. 411 (2002).
27

28

Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).

29

Section 5, Article VIII of the 1987 Constitution provides:


The Supreme Court shall have the following powers:
xxxx
(6) Appoint all officials and employees of the Judiciary in accordance with the Civil
Service Law.

Section 4, Article IX-A of the 1987 Constitution provides: "The Constitutional Commissions
shall appoint their officials and employees in accordance with law."
30

31

See note 26.

32

Constitution (1935), Art. VII, Sec. 10(3).

33

Constitution (1973), Art. VII, Sec. 10.

34

Supra note 26 at 523.

35

National Electrification Administration v. COA, 427 Phil. 464 (2002).

36

Id.

Department of Agrarian Reform Adjudication Board (DARAB) v. Lubrica, G.R. No. 159145,
29 April 2005, 457 SCRA 800; San Miguel Corporation v. Secretary of Labor, No. L-39195,
16 May 1975, 64 SCRA 56.
37

38

Constitution, Art. X, Sec. 2.

39

Id., Secs. 3 and 5.

40

Id., Sec. 4.

41

Administrative Code, Book III, Title II, Chapter 8, Section 23.

Mondano v. Silvosa, 97 Phil. 143 (1955); Section 38, paragraph 1, Chapter 7, Book IV of
the Administrative Code of 1987 provides:
42

Supervision and Control. Supervision and control shall include authority to act
directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units;
determine priorities in the execution of plans and programs; and prescribe standards,
guidelines, plans and programs. Unless a different meaning is explicitly provided in
the specific law governing the relationship of particular agencies, the word "control"
shall encompass supervision and control as defined in this paragraph. (Emphasis
supplied)
43

Constitution, Art. VII, Sec. 1; Villena v. Secretary of the Interior, 67 Phil. 451 (1939).

44

Supra note 10.

"Nature. The corporation hereby created shall be a non-municipal public corporation. Its
property, real and personal, shall belong to and be managed exclusively by the corporation
for the benefit of the Filipino people. Any income that may be derived from its projects and
operations and any contributions it may receive shall be invested in a Cultural Development
Fund set up to attain the objectives of this Act, or utilized for such purposes as its governing
board may decide upon, consistent with the purposes herein provided. It shall enjoy
autonomy of policy and operation but may seek the assistance and cooperation of various
government offices in pursuit of its objectives." (Emphasis supplied)
45

TINGA, J.
Issued by President Ferdinand Marcos on 5 October 1972 in the exercise of his legislative
powers during martial law. The legislative character of the CCP charter is beyond dispute,
even by the majority.
1

See Sec. 3, P.D No. 15, as amended (CCP Charter).

Per Decision dated 14 May 1999 in CA G.R. SP No. 50272, penned by Justice (now
Supreme Court Justice) Conchita Carpio-Morales, concurred in by Justices Artemon Luna
and Bernardo Abesamis.
3

Section 6, CCP Charter.

Infra.

Decision, infra.

Section 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.
7

Decision, infra.

Those officers whose appointment is vested to the President by the Constitution include the
Chairman and Commissioners of the three constitutional commissions (Section 1(2), Article
IX-B; Section 1(2), Article IX-C; Section 1(2), Article IX-D), the members of the Judicial and
Bar Council (Section 8(2), Article VIII), the Ombudsman and his Deputies (Section 9, Article
XI), members of the regional consultative commissions (Section 18, Article X), and formerly,
sectoral representatives (Section 7, Article XVIII). See also Sarmiento v. Mison, G.R. No. L79974, 17 December 1987, 156 SCRA 549.
9

10

Decision, infra.

11

Decision, infra.

For emphasis and contrast, in this disquisition the term board used in the Appointments
Clause is spelled with a capital letter "B" (Board) while the board of trustees/directors in
government corporations is spelled with a small letter "b" (board).
12

13

See Section 16, Article XII, Constitution.

14

See Section 2(4), Administrative Code of 1987.

Black's Law Dictionary, p. 618; citing Commissioners of State Ins. Fund v. Dinowitz, 179
Misc. 278, 39 N.Y.S.2d 34, 38.
15

16

Ibid.

17

Nosictur a sociis.

"The rule is too well-settled to require any citation of authorities that the word "or" is a
disjunctive term signifying dissociation and independence of one thing from each of the other
things enumerated unless the context requires a different interpretation." People v. Martin,
G.R. No. 33487, 31 May 1971, 39 SCRA 340, 346.
18

"It is to be remembered that the law makes the proprietor, lessee or operator, of the
amusement place liable for the amusement tax, the three tax payers being connected by the
disjunctive conjunction "or," thereby positively implying that the tax should be paid either by
the proprietor, the lessee, or the operator, as the case may be, singly and not by all at one
and the same time." CIR v. Manila Jockey Club, Inc., 99 Phil. 289, 296 (1956).
19

20

Supra note 4.

21

G.R. No. 139554 rollo, p. 39.

22

Section 8, CCP Charter. Emphasis supplied.

23

See G.R. No. 139554, rollo, p. 211. Emphasis supplied.

See J. Campos, Jr. and M.C. Campos, I The Corporation Code: Comments, Notes and
Selected Cases, 1990 ed., at 340.
24

See Vicente v. Geraldez, L-32473 & 32483, 31 July 1973, 52 SCRA 210, 227; citing Board
of Liquidators v. Kalaw, L-18805, Aug. 14, 1967, 20 SCRA 987.
25

"Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is
to be adopted." See CIR v. TMX Sales, G.R. No. 83736, 15 January 1992, 205 SCRA 184,
188; Cosico, Jr. v. NLRC, 338 Phil. 1080, 1089; Southern Cross Cement Corporation v.
PHILCEMCOR, G.R. No. 158540, 8 July 2004, 434 SCRA 65, 89.
26

27

Supra note 21.

28

Ibid.

Decision, infra. I agree with the Decision that the authority of Congress to authorize
appointments by the heads of departments, commissions, agencies or bureaus pertain only
to those junior officers within their respective enclaves. Thus, the Chairperson of the National
Police Commission cannot be authorized by law to appoint junior officials of the Dangerous
Drugs Board.
29

30

Edmond v. U.S., 520 U.S. 651 (1997).

31

338 Phil. 507 (1997).

32

Id. at 520.

33

Ibid.

34

See Section 5(6), Article VIII, Constitution.

35

See Section 2, Article IX-C and Section 2, Article IX-D, Constitution.

See Malonso v. Principe, A.C. No. 6289, 16 December 2004, 447 SCRA 1, 12-13; which
discussed the collegial nature of the IBP Board of Governors:
36

"Relevantly, Sec. 6, Rule 139-A of the Rules of Court provides in part:


Sec. 6. Board of Governors. the Integrated Bar shall be governed by a Board of
Governors. Nine Governors shall be elected by the House of Delegates from the nine
Regions on the representation basis of one Governor from each Region. . . .
xxx xxx xxx
The Board shall meet regularly once every three months, on such date and at such
time and place as it shall designate. A majority of all the members of the Board shall
constitute a quorum to do business. . . .
From these provisions, it is clear that before a lawyer may be suspended from the
practice of law by the IBP, there should be (1) a review of the investigator's report; (2)
a formal voting; and (3) a vote of at least five (5) members of the Board. The
rationale for this rule is simple: a decision reached by the Board in compliance
with the procedure is the official decision of the Board as a body and not
merely as the collective view of the individual members thereof. This is in

keeping with the very nature of a collegial body which arrives at its decisions
only after deliberation, the exchange of views and ideas, and the concurrence
of the required majority vote. (Ibid, at 12-13; citing Consing v. Court of Appeals,
G.R. No. 78272, 29 August 1989, 177 SCRA 14, 22. Emphasis supplied)
19 C.J.S. 33 (1940 ed.), citing Mcwhirter v. Washington Royalties Co., 152 A. 220, 17 Del.
Ch. 243; In re: Vicksburg Bridge & Terminal Co., D.C. Miss., 22 F. Supp. 490.
37

38

S. Bainbridge, Corporation Law and Economics (2002 ed.), p. 230.

39

See 8.08, Model Corporation Business Act.

See Conde v. National Tobacco Corp., 110 Phil. 717, 721 (1961); citing 6 C.J.S. 89. See
also H. de Leon and H. de Leon Jr., The Law on Public Officers and Election Law, 3rd.ed.,
1997, at 48.
40

F. MechEm, A Treatise on the Law of Public Offices and Officers, 1890 ed., at 61; citing
Stocking v. State, 7 Ind. 326.
41

42

Supra note 4.

43

Ibid.

See "Division of Corporations, State of Delaware," http://www.state.de.us/corp/


default.shtml (Last visited, 18 July 2006).
44

See 141(b), Subchapter IV. Directors and Officers, Chapter 1. General Corporation, Title
8. Corporations, Delaware Code.
45

46

Id.

See Section 14, Corporation Code, which fixes the number of directors or trustees as not
less than five (5), and not more than fifteen (15).
47

48

See Section 4, Corporation Code.

49

See Section 29, Corporation Code.

50

See Section 3, CCP Charter.

51

See Section 17, Article VII, Constitution; infra.

52

See Section 5, Article VII.

53

Myers v. United States, 272 U.S. 52, 119 (1926)

See Humphrey's Executor v. United States, 295 U.S. 602 (1935); Wiener v. United States,
357 U.S. 349 (1958)
54

55

See Section 2(3), Article IX-B, Constitution.

See J. Bernas, The Intent of the 1986 Constitution Writers, 1995 ed., at 596-98. The
exclusion of unchartered GOCCs from civil service coverage was in apparent adverse
reaction to the Court's ruling inNational Housing Authority v. Juco, G.R. No. 64313, 17
January 1985, 134 SCRA 172, that the Civil Service covered all GOCCs irrespective of the
manner of their creation. NHA v. Juco, id., at 182.
56

57

118 Phil. 1468. (1963)

58

Id. at 1472.

59

Id. at 1477.

60

Id. at 1478. Emphasis supplied.

61

Id. at 1479-80. Emphasis supplied.

62

Id. at 1480.

63

See Section 6, Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987.

64

Section 6(2), Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987.

Section 9, Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987. A similar


provision may be found in Section 6, Pres. Decree No. 807.
65

66

Section 2(2), Article IX(B), Constitution.

67

Section 46, Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987.

68

Mechem, supra note 41, at 284.

69

H. de Leon and H. de Leon Jr., supra note 40, at 338; citing 63 Am. Jur. 2d at 826-827.

70

Section 6(b), CCP Charter.

71

See Section 16, Article XII, Constitution.

72

See Sec. 6, Corporation Code.

73

See Sec. 6, Corporation Code.

Castillo v. Pajo, 103 Phil. 515, 519 (1958); Llanto v. Dimaporo, et al., G.R. No. L-21905, 31
March 1966, 16 SCRA 599, 604; U.P. Board of Regents v. Razul, G.R. No. 91551, 16 August
1991, 200 SCRA 685, 693.
74

De la Llana v. Alba, G.R. No. L-57883, 12 March 1982, 112 SCRA 294, 345, J. Barredo,
concurring.
75

76

Ople v. Torres, G.R. No. 127685, 23 July 1998, 293 SCRA 141, 150.

77

Phividec v. Capitol Steel, G.R. No. 155692, 23 October 2003, 414 SCRA 327, 332-333.

78

See H. de Leon and H. de Leon Jr., supra note 40, at 337.

79

Section 38, paragraph 1, Chapter 7, Book IV, Administrative Code of 1987.

80

See Gonzales v. Henchanova, 118 Phil. 1065, 1089, J. Barrerra, concurring.

81

J. Bernas, The Constitution of the Republic of the Philippines, 2003 ed., at 864.

82

Id. at 863.

83

Humphrey's Executor v. United States, 295 U.S. 602, 629. (1935).

84

See Section 8(18), Article I, U.S. Constitution.

See Section 16, Article XII, which reads: "Government owned or controlled corporations
may be created or established by special charters in the interest of the common good and
subject to the test of economic viability." A charter has been defined as an act of legislature
creating a business corporation, or creating and defining the franchise of a corporation." See
Black's Law Dictionary, p. 236.
85

86

See Section 3, CCP Charter.

87

See Section 15, Article XIV, Constitution.

88

See Section 14, Article XIV, Constitution.

89

See Section 4, Article III, Constitution.

Republic v. Court of Appeals, infra, citing El Filibusterismo, Guerrero translation, p. 49


[1965].
90

91

Republic v. Court of Appeals, 359 Phil. 530, 667-668 (1998), J. Puno, concurring.

See Sanlakas v. Executive Secretary, G.R. No. 159085, 3 February 2004, 421 SCRA 656;
Separate Opinion, La Bugal-B'laan Tribal Association, Inc. v. Ramos, G.R. No. 127882, 1
December 2004, 445 SCRA 1, 435-463; Constantino v. Cuisia, G.R. No. 106064, 13 October
2005, 472 SCRA 505; Dissenting Opinion,David v. Ermita, G.R. Nos. 171396, et al., 3 May
2006.
92

Republic of the Philippines

Supreme Court
Manila

EN BANC
DATU MICHAEL ABAS KIDA,
in his personal capacity, and in
representation of
MAGUINDANAO FEDERATION
OF AUTONOMOUS
IRRIGATORS ASSOCIATION,
INC., HADJI MUHMINA J.
USMAN, JOHN ANTHONY L.
LIM, JAMILON T. ODIN, ASRIN
TIMBOL JAIYARI, MUJIB M.
KALANG, ALIH AL-SAIDI J.
SAPI-E, KESSAR DAMSIE
ABDIL, and BASSAM ALUH
SAUPI,
Petitioners,
- versus SENATE OF THE PHILIPPINES,
represented by its President JUAN
PONCE ENRILE, HOUSE OF
REPRESENTATIVES, thru
SPEAKER FELICIANO
BELMONTE, COMMISSION ON
ELECTIONS, thru its Chairman,
SIXTO BRILLANTES, JR.,
PAQUITO OCHOA, JR., Office of
the President Executive Secretary,
FLORENCIO ABAD, JR.,
Secretary of Budget, and
ROBERTO TAN, Treasurer of the
Philippines,
Respondents.
X----------------------X
BASARI D. MAPUPUNO,
Petitioner,
- versus SIXTO BRILLANTES, in his

G.R. No. 196271

G.R. No. 196305

capacity as Chairman of the


Commission on Elections,
FLORENCIO ABAD, JR. in his
capacity as Secretary of the
Department of Budget and
Management, PAQUITO
OCHOA, JR., in his capacity as
Executive Secretary, JUAN
PONCE ENRILE, in his capacity
as Senate President, and
FELICIANO BELMONTE, in his
capacity as Speaker of the House
of Representatives,
Respondents.
X---------------------XREP. EDCEL C. LAGMAN,
Petitioner,
- versus PAQUITO N. OCHOA, JR., in his
capacity as the Executive
Secretary, and the COMMISSION
ON ELECTIONS,
Respondents.
X---------------------XALMARIM CENTI TILLAH,
DATU
CASAN CONDING CANA, and
PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN
(PDP-LABAN),
Petitioners,
- versus THE COMMISSION ON
ELECTIONS, through its
Chairman, SIXTO
BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary,

G.R. No. 197221

G.R. No. 197280

HON. FLORENCIO B. ABAD,


JR., in his capacity as Secretary of
the Department of Budget and
Management, and HON.
ROBERTO B. TAN, in his
capacity as Treasurer of the
Philippines,
Respondents.
X---------------------XATTY. ROMULO B.
MACALINTAL,
Petitioner,
- versus G.R. No. 197282
COMMISSION ON ELECTIONS
and THE OFFICE OF THE
PRESIDENT, through
EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR.,
Respondents.
X---------------------XLOUIS BAROK C. BIRAOGO,
Petitioner,
- versus THE COMMISSION ON
ELECTIONS and EXECUTIVE
SECRETARY PAQUITO N.
OCHOA, JR.,
Respondents.
X---------------------XJACINTO V. PARAS,
Petitioner,

- versus -

G.R. No. 197392

G.R. No. 197454


Present:

EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., and
the COMMISSION ON
ELECTIONS,
Respondents.
x-----------------------------------------x
MINORITY RIGHTS FORUM,
PHILIPPINES, INC.,
Respondents-Intervenor.

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,**
REYES, and
PERLAS-BERNABE, JJ.
Promulgated:

February 28, 2012


x-----------------------------------------------------------------------------------------x
RESOLUTION
BRION, J.:
We resolve: (a) the motion for reconsideration filed by petitioners Datu
Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion for reconsideration
filed by petitioner Rep. Edcel Lagman in G.R. No. 197221; (c) the ex abundante
ad cautelam motion for reconsideration filed by petitioner Basari Mapupuno in
G.R. No. 196305; (d) the motion for reconsideration filed by petitioner Atty.
Romulo Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by
petitioners Almarim Centi Tillah, Datu Casan Conding Cana and Partido
Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the manifestation
and motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No. 197280;
and (g) the very urgent motion to issue clarificatory resolution that the temporary
restraining order (TRO) is still existing and effective.

These motions assail our Decision dated October 18, 2011, where we upheld
the constitutionality of Republic Act (RA) No. 10153. Pursuant to the
constitutional mandate of synchronization, RA No. 10153 postponed the regional
elections in the Autonomous Region in Muslim Mindanao (ARMM) (which were
scheduled to be held on the second Monday of August 2011) to the second Monday
of May 2013 and recognized the Presidents power to appoint officers-in-charge
(OICs) to temporarily assume these positions upon the expiration of the terms of
the elected officials.
The Motions for Reconsideration
The petitioners in G.R. No. 196271 raise the following grounds in support of their
motion:
I.

THE HONORABLE COURT ERRED IN CONCLUDING THAT THE


ARMM ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING
THAT THE CONSTITUTION GIVES THE ARMM A SPECIAL STATUS
AND IS SEPARATE AND DISTINCT FROM ORDINARY LOCAL
GOVERNMENT UNITS.

II.

R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.

III.

THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A.


9054) ARE NOT IRREPEALABLE LAWS.

IV.

SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE


SECTION 18, ARTICLE X OF THE CONSTITUTION.

V.

BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC


PRINCIPLE[.][1]

The petitioner in G.R. No. 197221 raises similar grounds, arguing that:
I.

THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE


OFFICIALS OF ARMM CANNOT BE CONSIDERED AS OR
EQUATED WITH THE TRADITIONAL LOCAL GOVERNMENT
OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs)
BECAUSE (A) THERE IS NO EXPLICIT CONSTITUTIONAL
PROVISION ON SUCH PARITY; AND (B) THE ARMM IS MORE
SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND
AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS OWN
APART FROM TRADITIONAL LGUs.

II.

THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL


MANDATE FOR AN ELECTIVE AND REPRESENTATIVE
EXECUTIVE DEPARTMENT AND LEGISLATIVE ASSEMBLY IN
ARMM INDUBITABLY PRECLUDES THE APPOINTMENT BY THE
PRESIDENT
OF
OFFICERS-IN-CHARGE
(OICs),
ALBEIT
MOMENTARY OR TEMPORARY, FOR THE POSITIONS OF ARMM
GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE
REGIONAL ASSEMBLY.

III.

THE PRESIDENTS APPOINTING POWER IS LIMITED TO


APPOINTIVE OFFICIALS AND DOES NOT EXTEND TO ELECTIVE
OFFICIALS EVEN AS THE PRESIDENT IS ONLY VESTED WITH
SUPERVISORY POWERS OVER THE ARMM, THEREBY NEGATING
THE AWESOME POWER TO APPOINT AND REMOVE OICs
OCCUPYING ELECTIVE POSITIONS.

IV.

THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF


ARMM ELECTED OFFICIALS PENDING THE ELECTION AND
QUALIFICATION OF THEIR SUCCESSORS.

V.

THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED


OFFICIALS WHOSE TERMS OF OFFICE ARE NOT PROVIDED FOR
BY THE CONSTITUTION BUT PRESCRIBED BY THE ORGANIC
ACTS.

VI.

THE REQUIREMENT OF A SUPERMAJORITY OF VOTES IN THE


HOUSE OF REPRESENTATIVES AND THE SENATE FOR THE
VALIDITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF
THE ORGANIC ACTS DOES NOT IMPOSE AN IRREPEALABLE
LAW.

VII.

THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY


OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE
ORGANIC ACTS DOES NOT UNDULY EXPAND THE PLEBISCITE
REQUIREMENT OF THE CONSTITUTION.

VIII.

SYNCHRONIZATION OF THE ARMM ELECTION WITH THE


NATIONAL AND LOCAL ELECTIONS IS NOT MANDATED BY THE
CONSTITUTION.

IX.

THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT


SPECIAL ELECTIONS IN ARMM, AND THE ENACTMENT OF AN
IMPROVIDENT AND UNCONSTITUTIONAL STATUTE IS AN
ANALOGOUS CAUSE WARRANTING COMELECS HOLDING OF
SPECIAL ELECTIONS.[2] (italics supplied)

The petitioner in G.R. No. 196305 further asserts that:


I.

BEFORE THE COURT MAY CONSTRUE OR INTERPRET A


STATUTE, IT IS A CONDITION SINE QUA NON THAT THERE BE
DOUBT OR AMBIGUITY IN ITS LANGUAGE.

THE

TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND


UNAMBIGUOUS: THEY REFER TO THE 1992 ELECTIONS AND
TURN-OVER OF ELECTIVE OFFICIALS.
IN THUS RECOGNIZING A SUPPOSED INTENT OF THE FRAMERS,
AND APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER,
THE
HONORABLE
SUPREME
COURT
MAY
HAVE
VIOLATED THE FOREMOST
RULE
IN
STATUTORY
CONSTRUCTION.
xxxx

II.

THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT


RA 9054, AN ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE,
RA 10153 SHOULD BE CONSIDERED TO HAVE BEEN ENACTED
PRECISELY TO AMEND RA 9054.

III.

THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS


ERROR IN DECLARING THE 2/3 VOTING REQUIREMENT
SET FORTH IN RA 9054 AS UNCONSTITUTIONAL.

IV.

THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS


ERROR IN HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN
AMENDING THE ORGANIC ACT.

xxxx

xxxx

xxxx
V.

xxxx

THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN


DECLARING THE HOLD-OVER OF ARMM ELECTIVE OFFICIALS
UNCONSTITUTIONAL.

VI.

THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN


UPHOLDING THE APPOINTMENT OF OFFICERS-IN-CHARGE.
[3]
(italics and underscoring supplied)

The petitioner in G.R. No. 197282 contends that:


A.
ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs
FOR THE REGIONAL GOVERNMENT OF THE ARMM IS NOT
UNCONSTITUTIONAL TO BEGIN WITH, SUCH APPOINTMENT OF OIC
REGIONAL OFFICIALS WILL CREATE A FUNDAMENTAL CHANGE IN
THE BASIC STRUCTURE OF THE REGIONAL GOVERNMENT SUCH
THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO A
PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE, WHICH
PLEBISCITE REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY
CHARACTERIZING THE PROVISIONS OF R.A. NO. 10153 ON
APPOINTMENT OF OICs AS AN INTERIM MEASURE.
B.
THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT
BY THE PRESIDENT OF OICs FOR THE ARMM REGIONAL
GOVERNMENT IS NOT VIOLATIVE OF THE CONSTITUTION.
C.
THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT
VIOLATE THE CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE
ELECTED IN EITHER AN ELECTION TO BE HELD AT THE SOONEST
POSSIBLE TIME OR IN MAY 2013, THE SAID INCUMBENT ARMM
REGIONAL OFFICIALS MAY VALIDLY CONTINUE FUNCTIONING AS
SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH SECTION 7,
ARTICLE VII OF R.A. NO. 9054.
D.
WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS,
SPECIAL ELECTIONS MUST IMMEDIATELY BE HELD FOR THE
ELECTIVE REGIONAL OFFICIALS OF THE ARMM WHO SHALL SERVE
UNTIL THEIR SUCCESSORS ARE ELECTED IN THE MAY 2013
SYNCHRONIZED ELECTIONS.[4]

Finally, the petitioners in G.R. No. 197280 argue that:


a)

the Constitutional mandate of synchronization does not apply to the


ARMM elections;

b)

RA No. 10153 negates the basic principle of republican democracy


which, by constitutional mandate, guides the governance of the
Republic;

c)

RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has
to comply with the 2/3 vote from the House of Representatives and
the Senate, voting separately, and be ratified in a plebiscite;

d)

if the choice is between elective officials continuing to hold their


offices even after their terms are over and non-elective individuals
getting into the vacant elective positions by appointment as OICs, the
holdover option is the better choice;

e)

the President only has the power of supervision over autonomous


regions, which does not include the power to appoint OICs to take the
place of ARMM elective officials; and

f)

it would be better to hold the ARMM elections separately from the


national and local elections as this will make it easier for the
authorities to implement election laws.

In essence, the Court is asked to resolve the following questions:


(a)

Does the Constitution mandate the synchronization of ARMM


regional elections with national and local elections?

(b)

Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153
have to comply with the supermajority vote and plebiscite
requirements?

(c)

Is the holdover provision in RA No. 9054 constitutional?

(d)

Does the COMELEC have the power to call for special elections in
ARMM?

(e)

Does granting the President the power to appoint OICs violate the
elective and representative nature of ARMM regional legislative and
executive offices?

(f)

Does the appointment power granted to the President exceed the


Presidents supervisory powers over autonomous regions?
The Courts Ruling

We deny the motions for lack of merit.


Synchronization mandate includes ARMM elections
The Court was unanimous in holding that the Constitution mandates the
synchronization of national and local elections. While the Constitution does not
expressly instruct Congress to synchronize the national and local elections, the
intention can be inferred from the following provisions of the Transitory
Provisions (Article XVIII) of the Constitution, which state:
Section 1. The first elections of Members of the Congress under this Constitution
shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President,
which may be simultaneous with the election of the Members of the Congress. It
shall include the election of all Members of the city or municipal councils in the
Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives, and the local
officials first elected under this Constitution shall serve until noon of June 30,
1992.
Of the Senators elected in the elections in 1992, the first twelve obtaining the
highest number of votes shall serve for six years and the remaining twelve for
three years.
xxxx
Section 5. The six-year term of the incumbent President and Vice-President
elected in the February 7, 1986 election is, for purposes of synchronization of
elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this
Constitution shall be held on the second Monday of May, 1992.

To fully appreciate the constitutional intent behind these provisions, we refer


to the discussions of the Constitutional Commission:
MR. MAAMBONG. For purposes of identification, I will now read a section
which we will temporarily indicate as Section 14. It reads: THE SENATORS,
MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL
OFFICIALS ELECTED IN THE FIRST ELECTION SHALL SERVE FOR FIVE
YEARS, TO EXPIRE AT NOON OF JUNE 1992.
This was presented by Commissioner Davide, so may we ask that Commissioner
Davide be recognized.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.
MR. DAVIDE. Before going to the proposed amendment, I would only state that
in view of the action taken by the Commission on Section 2 earlier, I am
formulating a new proposal. It will read as follows: THE SENATORS,
MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL
OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL
SERVE UNTIL NOON OF JUNE 30, 1992.

I proposed this because of the proposed section of the Article on Transitory


Provisions giving a term to the incumbent President and Vice-President until
1992. Necessarily then, since the term provided by the Commission for Members
of the Lower House and for local officials is three years, if there will be an
election in 1987, the next election for said officers will be in 1990, and it would
be very close to 1992. We could never attain, subsequently, any synchronization
of election which is once every three years.
So under my proposal we will be able to begin actual synchronization in
1992, and consequently, we should not have a local election or an election for
Members of the Lower House in 1990 for them to be able to complete their term
of three years each. And if we also stagger the Senate, upon the first election it
will result in an election in 1993 for the Senate alone, and there will be an election
for 12 Senators in 1990. But for the remaining 12 who will be elected in 1987, if
their term is for six years, their election will be in 1993. So, consequently we will
have elections in 1990, in 1992 and in 1993. The later election will be limited to
only 12 Senators and of course to the local officials and the Members of the
Lower House. But, definitely, thereafter we can never have an election once every
three years, therefore defeating the very purpose of the Commission when we
adopted the term of six years for the President and another six years for the
Senators with the possibility of staggering with 12 to serve for six years and 12
for three years insofar as the first Senators are concerned. And so my proposal is
the only way to effect the first synchronized election which would mean,
necessarily, a bonus of two years to the Members of the Lower House and a
bonus of two years to the local elective officials.
THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?
MR. DE CASTRO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is
recognized.
MR. DE CASTRO. Thank you.
During the discussion on the legislative and the synchronization of elections, I
was the one who proposed that in order to synchronize the elections every three
years, which the body approved the first national and local officials to be elected
in 1987 shall continue in office for five years, the same thing the Honorable
Davide is now proposing. That means they will all serve until 1992, assuming that
the term of the President will be for six years and continue beginning in 1986. So
from 1992, we will again have national, local and presidential elections. This
time, in 1992, the President shall have a term until 1998 and the first 12
Senators will serve until 1998, while the next 12 shall serve until 1995, and
then the local officials elected in 1992 will serve until 1995. From then on, we
shall have an election every three years.

So, I will say that the proposition of Commissioner Davide is in order, if we have
to synchronize our elections every three years which was already approved by the
body.
Thank you, Mr. Presiding Officer.
xxxx
MR. GUINGONA. What will be synchronized, therefore, is the election of the
incumbent President and Vice-President in 1992.
MR. DAVIDE. Yes.
MR. GUINGONA. Not the reverse. Will the committee not synchronize the
election of the Senators and local officials with the election of the President?
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on
the assumption that the provision of the Transitory Provisions on the term of the
incumbent President and Vice-President would really end in 1992.
MR. GUINGONA. Yes.
MR. DAVIDE. In other words, there will be a single election in 1992 for all,
from the President up to the municipal officials.[5] (emphases and underscoring
ours)

The framers of the Constitution could not have expressed their objective
more clearly there was to be a single election in 1992 for all elective officials from
the President down to the municipal officials. Significantly, the framers were even
willing to temporarily lengthen or shorten the terms of elective officials in order to
meet this objective, highlighting the importance of this constitutional mandate.
We came to the same conclusion in Osmea v. Commission on Elections,
where we unequivocally stated that the Constitution has mandated synchronized
national and local elections."[7] Despite the length and verbosity of their motions,
the petitioners have failed to convince us to deviate from this established ruling.
[6]

Neither do we find any merit in the petitioners contention that the ARMM
elections are not covered by the constitutional mandate of synchronization because

the ARMM elections were not specifically mentioned in the above-quoted


Transitory Provisions of the Constitution.
That the ARMM elections were not expressly mentioned in the Transitory
Provisions of the Constitution on synchronization cannot be interpreted to mean
that the ARMM elections are not covered by the constitutional mandate of
synchronization. We have to consider that the ARMM, as we now know it, had not
yet been officially organized at the time the Constitution was enacted and ratified
by the people. Keeping in mind that a constitution is not intended to provide
merely for the exigencies of a few years but is to endure through generations for as
long as it remains unaltered by the people as ultimate sovereign, a constitution
should be construed in the light of what actually is a continuing instrument to
govern not only the present but also the unfolding events of the indefinite future.
Although the principles embodied in a constitution remain fixed and unchanged
from the time of its adoption, a constitution must be construed as a dynamic
process intended to stand for a great length of time, to be progressive and not
static.[8]
To reiterate, Article X of the Constitution, entitled Local Government,
clearly shows the intention of the Constitution to classify autonomous regions,
such as the ARMM, as local governments. We refer to Section 1 of this Article,
which provides:
Section 1. The territorial and political subdivisions of the Republic of
the Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.

The inclusion of autonomous regions in the enumeration of political


subdivisions of the State under the heading Local Government indicates quite
clearly the constitutional intent to consider autonomous regions as one of the forms
of local governments.
That the Constitution mentions only the national government and the local
governments, and does not make a distinction between the local government and
the regional government, is particularly revealing, betraying as it does the intention

of the framers of the Constitution to consider the autonomous regions not as


separate forms of government, but as political units which, while having more
powers and attributes than other local government units, still remain under the
category of local governments. Since autonomous regions are classified as local
governments, it follows that elections held in autonomous regions are also
considered as local elections.
The petitioners further argue that even assuming that the Constitution
mandates the synchronization of elections, the ARMM elections are not covered by
this mandate since they are regional elections and not local elections.
In construing provisions of the Constitution, the first rule is verba legis, that
is, wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed.[9] Applying this
principle to determine the scope of local elections, we refer to the meaning of the
word local, as understood in its ordinary sense. As defined in Websters Third New
International Dictionary Unabridged, local refers to something that primarily
serves the needs of a particular limited district, often a community or minor
political subdivision. Obviously, the ARMM elections, which are held within the
confines of the autonomous region of Muslim Mindanao, fall within this definition.
To be sure, the fact that the ARMM possesses more powers than other
provinces, cities, or municipalities is not enough reason to treat the ARMM
regional elections differently from the other local elections. Ubi lex non distinguit
nec nos distinguire debemus. When the law does not distinguish, we must not
distinguish.[10]
RA No. 10153 does not amend RA No. 9054
The petitioners are adamant that the provisions of RA No. 10153, in postponing the
ARMM elections, amend RA No. 9054.
We cannot agree with their position.
A thorough reading of RA No. 9054 reveals that it fixes the schedule for
only the first ARMM elections;[11] it does not provide the date for the succeeding
regular ARMM elections. In providing for the date of the regular ARMM elections,

RA No. 9333 and RA No. 10153 clearly do not amend RA No. 9054 since these
laws do not change or revise any provision in RA No. 9054. In fixing the date of
the ARMM elections subsequent to the first election, RA No. 9333 and RA No.
10153 merely filled the gap left in RA No. 9054.
We reiterate our previous observations:
This view that Congress thought it best to leave the determination of the
date of succeeding ARMM elections to legislative discretion finds support in
ARMMs recent history.
To recall, RA No. 10153 is not the first law passed that rescheduled the
ARMM elections. The First Organic Act RA No. 6734 not only did not fix the
date of the subsequent elections; it did not even fix the specific date of the first
ARMM elections, leaving the date to be fixed in another legislative enactment.
Consequently, RA No. 7647, RA No. 8176, RA No. 8746, RA No. 8753, and RA
No. 9012 were all enacted by Congress to fix the dates of the ARMM
elections. Since these laws did not change or modify any part or provision of RA
No. 6734, they were not amendments to this latter law. Consequently, there was
no need to submit them to any plebiscite for ratification.
The Second Organic Act RA No. 9054 which lapsed into law on March
31, 2001, provided that the first elections would be held on the second Monday of
September 2001. Thereafter, Congress passed RA No. 9140 to reset the date of the
ARMM elections. Significantly, while RA No. 9140 also scheduled the plebiscite
for the ratification of the Second Organic Act (RA No. 9054), the new date of the
ARMM regional elections fixed in RA No. 9140 was not among the provisions
ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress
passed RA No. 9333, which further reset the date of the ARMM regional
elections. Again, this law was not ratified through a plebiscite.
From these legislative actions, we see the clear intention of Congress to
treat the laws which fix the date of the subsequent ARMM elections as separate
and distinct from the Organic Acts. Congress only acted consistently with this
intent when it passed RA No. 10153 without requiring compliance with the
amendment prerequisites embodied in Section 1 and Section 3, Article XVII of
RA No. 9054.[12] (emphases supplied)

The petitioner in G.R. No. 196305 contends, however, that there is no lacuna
in RA No. 9054 as regards the date of the subsequent ARMM elections. In his
estimation, it can be implied from the provisions of RA No. 9054 that the

succeeding elections are to be held three years after the date of the first ARMM
regional elections.
We find this an erroneous assertion. Well-settled is the rule that the court
may not, in the guise of interpretation, enlarge the scope of a statute and include
therein situations not provided nor intended by the lawmakers. An omission at the
time of enactment, whether careless or calculated, cannot be judicially supplied
however later wisdom may recommend the inclusion.[13] Courts are not authorized
to insert into the law what they think should be in it or to supply what they think
the legislature would have supplied if its attention had been called to the omission.
[14]
Providing for lapses within the law falls within the exclusive domain of the
legislature, and courts, no matter how well-meaning, have no authority to intrude
into this clearly delineated space.
Since RA No. 10153 does not amend, but merely fills in the gap in RA No.
9054, there is no need for RA No. 10153 to comply with the amendment
requirements set forth in Article XVII of RA No. 9054.
Supermajority vote requirement makes RA No. 9054 an irrepealable law
Even assuming that RA No. 10153 amends RA No. 9054, however, we have
already established that the supermajority vote requirement set forth in Section 1,
Article XVII of RA No. 9054[15] is unconstitutional for violating the principle that
Congress cannot pass irrepealable laws.
The power of the legislature to make laws includes the power to amend and repeal
these laws. Where the legislature, by its own act, attempts to limit its power to
amend or repeal laws, the Court has the duty to strike down such act for interfering
with the plenary powers of Congress. As we explained in Duarte v. Dade:[16]
A state legislature has a plenary law-making power over all subjects, whether
pertaining to persons or things, within its territorial jurisdiction, either to
introduce new laws or repeal the old, unless prohibited expressly or by
implication by the federal constitution or limited or restrained by its own. It
cannot bind itself or its successors by enacting irrepealable laws except when so
restrained. Every legislative body may modify or abolish the acts passed by itself
or its predecessors. This power of repeal may be exercised at the same session at

which the original act was passed; and even while a bill is in its progress and
before it becomes a law. This legislature cannot bind a future legislature to a
particular mode of repeal. It cannot declare in advance the intent of
subsequent legislatures or the effect of subsequent legislation upon existing
statutes. [emphasis ours]

Under our Constitution, each House of Congress has the power to approve
bills by a mere majority vote, provided there is quorum. [17] In requiring all laws
which amend RA No. 9054 to comply with a higher voting requirement than the
Constitution provides (2/3 vote), Congress, which enacted RA No. 9054, clearly
violated the very principle which we sought to establish in Duarte. To reiterate, the
act of one legislature is not binding upon, and cannot tie the hands of, future
legislatures.[18]
We also highlight an important point raised by Justice Antonio T. Carpio in
his dissenting opinion, where he stated: Section 1, Article XVII of RA 9054 erects
a high vote threshold for each House of Congress to surmount, effectively and
unconstitutionally, taking RA 9054 beyond the reach of Congress amendatory
powers. One Congress cannot limit or reduce the plenary legislative power of
succeeding Congresses by requiring a higher vote threshold than what the
Constitution requires to enact, amend or repeal laws. No law can be passed fixing
such a higher vote threshold because Congress has no power, by ordinary
legislation, to amend the Constitution.[19]
Plebiscite requirement in RA No. 9054 overly broad
Similarly, we struck down the petitioners contention that the plebiscite
requirement[20] applies to all amendments of RA No. 9054 for being an
unreasonable enlargement of the plebiscite requirement set forth in the
Constitution.
Section 18, Article X of the Constitution provides that [t]he creation of the
autonomous region shall be effective when approved by majority of the votes cast
by the constituent units in a plebiscite called for the purpose[.] We interpreted this
to mean that only amendments to, or revisions of, the Organic Act constitutionallyessential to the creation of autonomous regions i.e., those aspects specifically

mentioned in the Constitution which Congress must provide for in the Organic
Act[21]require ratification through a plebiscite. We stand by this interpretation.
The petitioners argue that to require all amendments to RA No. 9054 to
comply with the plebiscite requirement is to recognize that sovereignty resides
primarily in the people.
While we agree with the petitioners underlying premise that sovereignty
ultimately resides with the people, we disagree that this legal reality necessitates
compliance with the plebiscite requirement for all amendments to RA No. 9054.
For if we were to go by the petitioners interpretation of Section 18, Article X of the
Constitution that all amendments to the Organic Act have to undergo the plebiscite
requirement before becoming effective, this would lead to impractical and illogical
results hampering the ARMMs progress by impeding Congress from enacting laws
that timely address problems as they arise in the region, as well as weighing down
the ARMM government with the costs that unavoidably follow the holding of a
plebiscite.
Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in
giving the President the power to appoint OICs to take the place of the elective
officials of the ARMM, creates a fundamental change in the basic structure of the
government, and thus requires compliance with the plebiscite requirement
embodied in RA No. 9054.
Again, we disagree.
The pertinent provision in this regard is Section 3 of RA No. 10153, which
reads:
Section 3. Appointment of Officers-in-Charge. The President shall appoint
officers-in-charge for the Office of the Regional Governor, Regional Vice
Governor and Members of the Regional Legislative Assembly who shall perform
the functions pertaining to the said offices until the officials duly elected in the
May 2013 elections shall have qualified and assumed office.

We cannot see how the above-quoted provision has changed the basic
structure of the ARMM regional government. On the contrary, this provision

clearly preserves the basic structure of the ARMM regional government when it
recognizes the offices of the ARMM regional government and directs the OICs
who shall temporarily assume these offices to perform the functions pertaining to
the said offices.
Unconstitutionality of the holdover provision
The petitioners are one in defending the constitutionality of Section 7(1), Article
VII of RA No. 9054, which allows the regional officials to remain in their positions
in a holdover capacity. The petitioners essentially argue that the ARMM regional
officials should be allowed to remain in their respective positions until the May
2013 elections since there is no specific provision in the Constitution which
prohibits regional elective officials from performing their duties in a holdover
capacity.
The pertinent provision of the Constitution is Section 8, Article X which provides:
Section 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall
serve for more than three consecutive terms. [emphases ours]

On the other hand, Section 7(1), Article VII of RA No. 9054 provides:
Section 7. Terms of Office of Elective Regional Officials. (1) Terms of Office.
The terms of office of the Regional Governor, Regional Vice Governor and
members of the Regional Assembly shall be for a period of three (3) years, which
shall begin at noon on the 30th day of September next following the day of the
election and shall end at noon of the same date three (3) years thereafter. The
incumbent elective officials of the autonomous region shall continue in effect
until their successors are elected and qualified.

The clear wording of Section 8, Article X of the Constitution expresses the


intent of the framers of the Constitution to categorically set a limitation on the
period within which all elective local officials can occupy their offices. We have
already established that elective ARMM officials are also local officials; they are,
thus, bound by the three-year term limit prescribed by the Constitution. It,
therefore, becomes irrelevant that the Constitution does not expressly prohibit

elective officials from acting in a holdover capacity. Short of amending the


Constitution, Congress has no authority to extend the three-year term limit by
inserting a holdover provision in RA No. 9054. Thus, the term of three years for
local officials should stay at three (3) years, as fixed by the Constitution, and
cannot be extended by holdover by Congress.
Admittedly, we have, in the past, recognized the validity of holdover
provisions in various laws. One significant difference between the present case and
these past cases[22] is that while these past cases all refer to
elective barangay or sangguniang kabataan officials whose terms of office are not
explicitly provided for in the Constitution, the present case refers to local elective
officials - the ARMM Governor, the ARMM Vice Governor, and the members of
the Regional Legislative Assembly - whose terms fall within the three-year term
limit set by Section 8, Article X of the Constitution.
Even assuming that a holdover is constitutionally permissible, and there had
been statutory basis for it (namely Section 7, Article VII of RA No. 9054), the rule
of holdover can only apply as an available option where no express or implied
legislative intent to the contrary exists; it cannot apply where such contrary intent
is evident.[23]
Congress, in passing RA No. 10153 and removing the holdover option, has
made it clear that it wants to suppress the holdover rule expressed in RA No. 9054.
Congress, in the exercise of its plenary legislative powers, has clearly acted within
its discretion when it deleted the holdover option, and this Court has no authority
to question the wisdom of this decision, absent any evidence of unconstitutionality
or grave abuse of discretion. It is for the legislature and the executive, and not this
Court, to decide how to fill the vacancies in the ARMM regional government
which arise from the legislature complying with the constitutional mandate of
synchronization.
COMELEC has no authority to hold special elections
Neither do we find any merit in the contention that the Commission on Elections
(COMELEC) is sufficiently empowered to set the date of special elections in the

ARMM. To recall, the Constitution has merely empowered the COMELEC to


enforce and administer all laws and regulations relative to the conduct of an
election.[24] Although the legislature, under the Omnibus Election Code (Batas
Pambansa Bilang [BP] 881), has granted the COMELEC the power to postpone
elections to another date, this power is confined to the specific terms and
circumstances provided for in the law. Specifically, this power falls within the
narrow confines of the following provisions:
Section 5. Postponement of election. - When for any serious cause such
as violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes of such a nature that the
holding of a free, orderly and honest election should become impossible in any
political subdivision, the Commission, motu proprio or upon a verified petition by
any interested party, and after due notice and hearing, whereby all interested
parties are afforded equal opportunity to be heard, shall postpone the election
therein to a date which should be reasonably close to the date of the election
not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause for such postponement or suspension of
the election or failure to elect.
Section
6. Failure
of
election.
If,
on
account
of force
majeure, violence, terrorism, fraud, or other analogous causes the election in
any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the result of
the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure to
elect on a date reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after the cessation
of the cause of such postponement or suspension of the election or failure to elect.
[emphases and underscoring ours]

As we have previously observed in our assailed decision, both Section 5 and


Section 6 of BP 881 address instances where elections have already been
scheduled to take place but do not occur or had to be suspended because
of unexpected and unforeseen circumstances, such as violence, fraud, terrorism,
and other analogous circumstances.

In contrast, the ARMM elections were postponed by law, in furtherance


of the constitutional mandate of synchronization of national and local elections.
Obviously, this does not fall under any of the circumstances contemplated by
Section 5 or Section 6 of BP 881.
More importantly, RA No. 10153 has already fixed the date for the next
ARMM elections and the COMELEC has no authority to set a different election
date.
Even assuming that the COMELEC has the authority to hold special elections, and
this Court can compel the COMELEC to do so, there is still the problem of having
to shorten the terms of the newly elected officials in order to synchronize the
ARMM elections with the May 2013 national and local elections. Obviously,
neither the Court nor the COMELEC has the authority to do this, amounting as it
does to an amendment of Section 8, Article X of the Constitution, which limits the
term of local officials to three years.
Presidents authority to appoint OICs
The petitioner in G.R. No. 197221 argues that the Presidents power to
appoint pertains only to appointive positions and cannot extend to positions held
by elective officials.
The power to appoint has traditionally been recognized as executive in
nature.[25] Section 16, Article VII of the Constitution describes in broad strokes the
extent of this power, thus:
Section 16. 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 of the armed forces from the rank
of colonel or naval captain, 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.
[emphasis ours]

The 1935 Constitution contained a provision similar to the one quoted


above. Section 10(3), Article VII of the 1935 Constitution provides:
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive 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
appointments 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. [emphasis ours]

The main distinction between the provision in the 1987 Constitution and its
counterpart in the 1935 Constitution is the sentence construction; while in the 1935
Constitution, the various appointments the President can make are enumerated in a
single sentence, the 1987 Constitution enumerates the various appointments the
President is empowered to make and divides the enumeration in two sentences.
The change in style is significant; in providing for this change, the framers of the
1987 Constitution clearly sought to make a distinction between the first group of
presidential appointments and the second group of presidential appointments, as
made evident in the following exchange:
MR. FOZ. Madame President x x x I propose to put a period (.) after captain and
x x x delete and all and substitute it with HE SHALL ALSO APPOINT ANY.
MR. REGALADO. Madam President, the Committee accepts 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.[26]

The first group of presidential appointments, specified as the heads of the


executive departments, ambassadors, other public ministers and consuls, or officers
of the Armed Forces, and other officers whose appointments are vested in the
President by the Constitution, pertains to the appointive officials who have to be
confirmed by the Commission on Appointments.
The second group of officials the President can appoint are 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. [27] The second sentence acts
as the catch-all provision for the Presidents appointment power, in recognition of
the fact that the power to appoint is essentially executive in nature. [28] The wide
latitude given to the President to appoint is further demonstrated by the recognition
of the Presidents power to appoint officials whose appointments are not even
provided for by law. In other words, where there are offices which have to be
filled, but the law does not provide the process for filling them, the Constitution
recognizes the power of the President to fill the office by appointment.
Any limitation on or qualification to the exercise of the Presidents
appointment power should be strictly construed and must be clearly stated in order
to be recognized.[29] Given that the President derives his power to appoint OICs in
the ARMM regional government from law, it falls under the classification of
presidential appointments covered by the second sentence of Section 16, Article
VII of the Constitution; the Presidents appointment power thus rests on clear
constitutional basis.
The petitioners also jointly assert that RA No. 10153, in granting the
President the power to appoint OICs in elective positions, violates Section 16,
Article X of the Constitution,[30] which merely grants the President the power of
supervision over autonomous regions.
This is an overly restrictive interpretation of the Presidents appointment
power. There is no incompatibility between the Presidents power of supervision
over local governments and autonomous regions, and the power granted to the
President, within the specific confines of RA No. 10153, to appoint OICs.
The power of supervision is defined as the power of a superior officer to see to it
that lower officers perform their functions in accordance with law.[31] This is
distinguished from the power of control or the power of an officer to alter or
modify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for the latter.[32]
The petitioners apprehension regarding the Presidents alleged power of
control over the OICs is rooted in their belief that the Presidents appointment
power includes the power to remove these officials at will. In this way, the

petitioners foresee that the appointed OICs will be beholden to the President, and
act as representatives of the President and not of the people.
Section 3 of RA No. 10153 expressly contradicts the petitioners supposition.
The provision states:
Section 3. Appointment of Officers-in-Charge. The President shall appoint
officers-in-charge for the Office of the Regional Governor, Regional Vice
Governor and Members of the Regional Legislative Assembly who shall perform
the functions pertaining to the said offices until the officials duly elected in the
May 2013 elections shall have qualified and assumed office.

The wording of the law is clear. Once the President has appointed the OICs
for the offices of the Governor, Vice Governor and members of the Regional
Legislative Assembly, these same officials will remain in office until they are
replaced by the duly elected officials in the May 2013 elections. Nothing in this
provision even hints that the President has the power to recall the appointments he
already made. Clearly, the petitioners fears in this regard are more apparent than
real.
RA No. 10153 as an interim measure
We reiterate once more the importance of considering RA No. 10153 not in a
vacuum, but within the context it was enacted in. In the first place, Congress
enacted RA No. 10153 primarily to heed the constitutional mandate to synchronize
the ARMM regional elections with the national and local elections. To do this,
Congress had to postpone the scheduled ARMM elections for another date, leaving
it with the problem of how to provide the ARMM with governance in the
intervening period, between the expiration of the term of those elected in August
2008 and the assumption to office twenty-one (21) months away of those who will
win in the synchronized elections on May 13, 2013.
In our assailed Decision, we already identified the three possible solutions
open to Congress to address the problem created by synchronization (a) allow the
incumbent officials to remain in office after the expiration of their terms in a
holdover capacity; (b) call for special elections to be held, and shorten the terms of
those to be elected so the next ARMM regional elections can be held on May 13,

2013; or (c) recognize that the President, in the exercise of his appointment powers
and inline with his power of supervision over the ARMM, can appoint interim
OICs to hold the vacated positions in the ARMM regional government upon the
expiration of their terms. We have already established the unconstitutionality of the
first two options, leaving us to consider the last available option.
In this way, RA No. 10153 is in reality an interim measure, enacted to
respond to the adjustment that synchronization requires. Given the context, we
have to judge RA No. 10153 by the standard of reasonableness in responding to the
challenges brought about by synchronizing the ARMM elections with the national
and local elections. In other words, given the plain unconstitutionality of
providing for a holdover and the unavailability of constitutional possibilities for
lengthening or shortening the term of the elected ARMM officials, is the choice
of the Presidents power to appoint for a fixed and specific period as an interim
measure, and as allowed under Section 16, Article VII of the Constitution an
unconstitutional or unreasonable choice for Congress to make?[33]
We admit that synchronization will temporarily disrupt the election process
in a local community, the ARMM, as well as the communitys choice of leaders.
However, we have to keep in mind that the adoption of this measure is a matter of
necessity in order to comply with a mandate that the Constitution itself has set out
for us. Moreover, the implementation of the provisions of RA No. 10153 as an
interim measure is comparable to the interim measures traditionally practiced
when, for instance, the President appoints officials holding elective offices upon
the creation of new local government units.
The grant to the President of the power to appoint OICs in place of the
elective members of the Regional Legislative Assembly is neither novel nor
innovative. The power granted to the President, via RA No. 10153, to appoint
members of the Regional Legislative Assembly is comparable to the power granted
by BP 881 (the Omnibus Election Code) to the President to fill any vacancy for
any cause in the Regional Legislative Assembly (then called the Sangguniang
Pampook).[34]
Executive is not bound by the principle of judicial courtesy

The petitioners in G.R. No. 197280, in their Manifestation and Motion dated
December 21, 2011, question the propriety of the appointment by the President of
Mujiv Hataman as acting Governor and Bainon Karon as acting Vice Governor of
the ARMM. They argue that since our previous decision was based on a close vote
of 8-7, and given the numerous motions for reconsideration filed by the parties, the
President, in recognition of the principle of judicial courtesy, should have refrained
from implementing our decision until we have ruled with finality on this case.
We find the petitioners reasoning specious.
Firstly, the principle of judicial courtesy is based on the hierarchy of courts and
applies only to lower courts in instances where, even if there is no writ of
preliminary injunction or TRO issued by a higher court, it would be proper for a
lower court to suspend its proceedings for practical and ethical considerations. [35] In
other words, the principle of judicial courtesy applies where there is a strong
probability that the issues before the higher court would be rendered moot and
moribund as a result of the continuation of the proceedings in the lower court or
court of origin.[36] Consequently, this principle cannot be applied to the President,
who represents a co-equal branch of government. To suggest otherwise would be to
disregard the principle of separation of powers, on which our whole system of
government is founded upon.
Secondly, the fact that our previous decision was based on a slim vote of 8-7 does
not, and cannot, have the effect of making our ruling any less effective or binding.
Regardless of how close the voting is, so long as there is concurrence of the
majority of the members of the en banc who actually took part in the deliberations
of the case,[37] a decision garnering only 8 votes out of 15 members is still a
decision of the Supreme Court en banc and must be respected as such. The
petitioners are, therefore, not in any position to speculate that, based on the voting,
the probability exists that their motion for reconsideration may be granted.[38]
Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue
Clarificatory Resolution, argues that since motions for reconsideration were filed
by the aggrieved parties challenging our October 18, 2011 decision in the present
case, the TRO we initially issued on September 13, 2011 should remain subsisting
and effective. He further argues that any attempt by the Executive to implement

our October 18, 2011 decision pending resolution of the motions for
reconsideration borders on disrespect if not outright insolence[39] to this Court.
In support of this theory, the petitioner cites Samad v. COMELEC,[40] where
the Court held that while it had already issued a decision lifting the TRO, the
lifting of the TRO is not yet final and executory, and can also be the subject of a
motion for reconsideration. The petitioner also cites the minute resolution issued
by the Court in Tolentino v. Secretary of Finance,[41] where the Court reproached
the Commissioner of the Bureau of Internal Revenue for manifesting its intention
to implement the decision of the Court, noting that the Court had not yet lifted the
TRO previously issued.[42]
We agree with the petitioner that the lifting of a TRO can be included as a subject
of a motion for reconsideration filed to assail our decision. It does not follow,
however, that the TRO remains effective until after we have issued a final and
executory decision, especially considering the clear wording of the dispositive
portion of our October 18, 2011 decision, which states:
WHEREFORE, premises considered, we DISMISS the consolidated
petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD
the constitutionality of this law. We likewise LIFT the temporary restraining
order we issued in our Resolution of September 13, 2011. No costs.
[43]
(emphases ours)

In this regard, we note an important distinction between Tolentino and the


present case. While it may be true that Tolentino and the present case are similar in
that, in both cases, the petitions assailing the challenged laws were dismissed by
the Court, an examination of the dispositive portion of the decision
in Tolentinoreveals that the Court did not categorically lift the TRO. In sharp
contrast, in the present case, we expressly lifted the TRO issued on September 13,
2011. There is, therefore, no legal impediment to prevent the President from
exercising his authority to appoint an acting ARMM Governor and Vice Governor
as specifically provided for in RA No. 10153.
Conclusion

As a final point, we wish to address the bleak picture that the petitioner in
G.R. No. 197282 presents in his motion, that our Decision has virtually given the
President the power and authority to appoint 672,416 OICs in the event that the
elections of barangay and Sangguniang Kabataan officials are postponed or
cancelled.
We find this speculation nothing short of fear-mongering.
This argument fails to take into consideration the unique factual and legal
circumstances which led to the enactment of RA No. 10153. RA No. 10153 was
passed in order to synchronize the ARMM elections with the national and local
elections. In the course of synchronizing the ARMM elections with the national
and local elections, Congress had to grant the President the power to appoint OICs
in the ARMM, in light of the fact that: (a) holdover by the incumbent ARMM
elective officials is legally impermissible; and (b) Congress cannot call for special
elections and shorten the terms of elective local officials for less than three years.
Unlike local officials, as the Constitution does not prescribe a term limit
for barangay and Sangguniang Kabataan officials, there is no legal proscription
which prevents these specific government officials from continuing in a holdover
capacity
should
some
exigency
require
the
postponement
of barangay or Sangguniang Kabataan elections. Clearly, these fears have neither
legal nor factual basis to stand on.
For the foregoing reasons, we deny the petitioners motions for reconsideration.
WHEREFORE, premises considered, we DENY with FINALITY the
motions for reconsideration for lack of merit and UPHOLD the constitutionality of
RA No. 10153.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:

RENATO C. CORONA
Chief Justice

I reiterate my Dissenting Opinion


ANTONIO T. CARPIO
Associate Justice

I reiterate my Dissenting Opinion


PRESBITERO J. VELASCO, JR.
Associate Justice

I maintain my vote joining the dissent of


Justice Velasco
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

(On Official Leave)


MARIANO C. DEL CASTILLO
Associate Justice

I maintain my dissent
ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

I join the Dissent of J. Carpio


JOSE PORTUGAL PEREZ
Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

(On Leave)
MARIA LOURDES P. A. SERENO
Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

On official leave.
On leave.
[1]
Rollo, G.R. No. 196271, p. 1221.
[2]
Id. at 1261-1263.
[3]
Id. at 1345-1383.
[4]
Id. at 1174-1175.
[5]
V Record of the Constitutional Commission, October 3, 1986, pp. 429-431.
[6]
G.R. Nos. 100318, 100308, 100417, and 100420, July 30, 1991, 199 SCRA 750.
[7]
Id. at 762.
[8]
See Ruben, STATUTORY CONSTRUCTION, 5th ed., 2003, p. 435, citing Roman Cath. Apostolic Adm. of Davao,
Inc. v. Land Reg. Com., et al., 102 Phil. 596 (1957).
**

[9]

Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 884 (2003).

[10]

Amores v. House of Representatives Electoral Tribunal, G.R. No. 189600, June 29, 2010, 622 SCRA 593,
citing Adasa v. Abalos, G.R. No. 168617, February 19, 2007, 516 SCRA 261, 280, and Philippine Free Press, Inc. v.
Court of Appeals, 510 Phil. 411, 433 (2005).
[11]
Section 7, Article XVIII of RA No. 9054 provides:
Section 7. First Regular Elections. The first regular elections of the Regional Governor, Regional Vice Governor and
members of the regional legislative assembly under this Organic Act shall be held on the second Monday of
September 2001. The Commission on Elections shall promulgate rules and regulations as may be necessary for the
conduct of said election.
The election of the Regional Governor, Regional Vice Governor, and members of the Regional Legislative
Assembly of the Autonomous Region In Muslim Mindanao (ARMM) set forth in Republic Act No. 8953 is hereby
reset accordingly.
The funds for the holding of the ARMM elections shall be taken from the savings of the national government or
shall be provided in the General Appropriations Act (GAA).
[12]
Rollo, G.R. No. 196271, pp. 1035-1037.
[13]
Ruben, supra note 8, at 74, citing Morales v. Subido, etc., 135 Phil. 346 (1968).
[14]
Id., citing People v. Garcia, 85 Phil. 651 (1950).
[15]
Section 1, Article XVII of RA No. 9054 provides: Consistent with the provisions of the Constitution, this Organic
Act may be re-amended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the
Members of the House of Representatives and of the Senate voting separately.
[16]
32 Phil. 36, 49 (1915), citing Lewis' Southernland on Statutory Construction, section 244.

[17]

CONSTITUTION, Article VI, Section 16(2) states: A majority of each House shall constitute a quorum to do
business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in
such manner, and under such penalties, as such House may provide.
[18]
See The City of Davao v. The Regional Trial Court, Branch XII, Davao City, 504 Phil. 543 (2005), citing 59 C.J.,
sec. 500, pp. 899-900.
[19]
Rollo, G.R. No. 196271, pp. 1084-1085.
[20]
Section 3, Article XVII of RA No. 9054 provides: Any amendment to or revision of this Organic Act shall
become effective only when approved by a majority of the vote 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.
[21]
These include: (a) the basic structure of the regional government; (b) the regions judicial system, i.e.,
the special courts with personal, family, and property law jurisdiction; and (c) the grant and extent of the
legislative powers constitutionally conceded to the regional government under Section 20, Article X of the
Constitution.
[22]
Adap v. Commission on Elections, G.R. No. 161984, February 21, 2007, 516 SCRA 403; Sambarani v.
COMELEC, 481 Phil. 661 (2004); and Montesclaros v. Comelec, 433 Phil. 620 (2002).
[23]
Guekeko v. Santos, 76 Phil. 237 (1946).
[24]
See CONSTITUTION, Article IX(C), Section 2.
[25]
Hon. Luis Mario M. General, Commissioner, National Police Commission v. Hon. Alejandro S. Urro, in his
capacity as the new appointee vice herein petitioner Hon. Luis Mario M. General, National Police
Commission, andHon. Luis Mario M. General, Commissioner, National Police Commission v. President Gloria
Macapagal-Arroyo, thru Executive Secretary Leandro Mendoza, in Her capacity as the appointing power, Hon.
Ronaldo V. Puno, in His capacity as Secretary of the Department of Interior and Local Government and as ExOfficio Chairman of the National Police Commission and Hon. Eduardo U. Escueta, Alejandro S. Urro, and Hon.
Constancia P. de Guzman as the midnight appointee, G.R. No. 191560, March 29, 2011.
[26]
II Record of the Constitutional Commission, July 31, 1986, p. 520.
[27]
CONSTITUTION, Article VII, Section 16.
[28]
Pimentel, Jr. v. Exec. Secretary Ermita, 509 Phil. 567 (2005).
[29]
Id. at 573, citing Sarmiento III v. Commissioner Mison, 240 Phil. 505 (1987).
[30]
Section 16. The President shall exercise general supervision over autonomous regions to ensure that laws are
faithfully executed.
[31]
Bito-onon v. Hon. Yap Fernandez, 403 Phil. 693, 702 (2001), citing Drilon v. Lim, G.R. No. 112497, August 4,
1994, 235 SCRA 135, 141.
[32]
Drilon v. Lim, supra, at 140-141.
[33]
Rollo, G.R. No. 196271, pp. 1057-1058.
[34]
Section 35. Filling of vacancy. - Pending an election to fill a vacancy arising from any cause in the Sangguniang
Pampook, the vacancy shall be filled by the President, upon recommendation of the Sangguniang Pampook:
Provided, That the appointee shall come from the same province or sector of the member being replaced.
[35]
Rep. of the Phils. v. Sandiganbayan (First Div.), 525 Phil. 804 (2006).
[36]
Eternal Gardens Memorial Park Corp. v. Court of Appeals, 247 Phil. 387, 394 (1988).
[37]
Section 1(a), Rule 12 of the 2010 Internal Rules of the Supreme Court provides: SECTION 1. Voting
requirements. (a) All decisions and actions in Court en banc cases shall be made upon the concurrence of the
majority of the Members of the Court who actually took part in the deliberations on the issue or issues involved and
voted on them.
[38]
Rollo, G.R. No. 196271, p. 1440.
[39]
Tolentino v. Secretary of Finance, G.R. No. 115455, September 23, 1994, Minute Resolution.
[40]
G.R. Nos. 107854 and 108642, July 16, 1993, 224 SCRA 631.
[41]
G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873, and 115931, August 25, 1994,
235 SCRA 630.
[42]

The Court, in its Minute Resolution dated September 23, 1994, stated thus:
The Court calls the attention of respondents of the fact that the temporary restraining
order issued on June 30, 1994 was effective immediately and continuing until further orders from
this Court. Although the petitions in connection with which the TRO was issued were
subsequently dismissed, the decision is not yet final and the TRO previously issued has not been

lifted xxx because the TRO in these cases was expressly made effective until otherwise ordered by
this Court. (Rollo, G.R. No. 196271, p. 1426; emphasis ours.)
[43]
Rollo, G.R. No. 196271, p. 1067.

CONTROL
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-46570

April 21, 1939

JOSE D. VILLENA, petitioner,


vs.
THE SECRETARY OF THE INTERIOR, respondent.
Vicente del Rosario for petitioner.
Office of the Solicitor-General Ozaeta for respondent.
LAUREL, J.:
This is an original action of prohibition with prayer for preliminary injunction against the Secretary of
the Interior to restrain him and his agents from proceeding with the investigation of the herein
petitioner, Jose D. Villena, mayor of Makati, Rizal, which was scheduled to take place on March 28,
1939, until this case is finally determined by this court. The respondent was required to answer, but
the petition for preliminary injunction was denied.
It appears that the Division of Investigation of the Department of Justice, upon the request of the
Secretary of the Interior, conducted an inquiry into the conduct of the petitioner, as a result of which
the latter was found to have committed bribery, extortion, malicious abuse of authority and
unauthorized practice of the law profession. The respondent, therefore, on February 8, 1939,
recommended to the President of the Philippines the suspension of the petitioner to prevent possible
coercion of witnesses, which recommendation was granted, according to the answer of the SolicitorGeneral of March 20, 1939, verbally by the President on the same day. The Secretary of the Interior
suspended the petitioner from office on February 9, 1939, and then and thereafter wired the
Provincial Governor of Rizal with instruction that the petitioner be advised accordingly. On February
13, 1939, the respondent wrote the petitioner a letter, specifying the many charges against him and
notifying him of the designation of Emiliano Anonas as special investigator to investigate the
charges. The special investigator forthwith notified the petitioner that the formal investigation would
be commenced on February 17, 1939, at 9 a. m., but due to several incidents and postponements,
the same had to be set definitely for March 28, 1939. Hence, the petition for preliminary injunction
referred to in the beginning of this opinion.
The petitioner contends in his petition:
(1) That the Secretary of the Interior has no jurisdiction or authority to suspend and much
less to prefer by himself administrative charges against the petitioner and decide also by
himself the merits of the charges as the power to suspend municipal elective officials and to

try and punish them for misconduct in office or dereliction of duty is lodged in some other
agencies of the government;
(2) That the acts of the respondent in suspending the petitioner from office and in preferring
by himself charges against him and in designating a special investigator to hear the charges
specified in Exhibit A are null and void for the following reasons:
(a) Because the Secretary of the Interior, by suspending the petitioner, has exercised
control over local governments when that power has been taken away from the
President of the Philippines by the Constitution for the to abrogate and the power to
abrogate means the power to power to control has been interpreted to include the
power usurp and the power to usurp necessarily includes the power to destroy;
(b) Because even if the respondent Secretary of the Interior has power of supervision
over local governments, that power, according to the constitution, must be exercised
in accordance with the provisions of law and the provisions of law governing trials of
charges against elective municipal officials are those contained in section 2188 of the
Administrative Code as amended. In other words, the Secretary of the Interior must
exercise his supervision over local governments, if he has that power under existing
law, in accordance with section 2188 of the Administrative Code, as amended, as the
latter provision govern the procedure to be followed in suspending and punishing
elective local officials while section 79 (C) of the Administrative Code is the general
law which must yield to the special law;
(c) Because the respondent Secretary of the Interior is exercising an arbitrary power
by converting himself into a complainant and at the same time judge of the charges
he has preferred against the petitioner;
(d) Because the action of the respondent Secretary of the Interior is not based on
any sworn statement of any private person or citizen of this government when
section 2188 of the Administrative Code requires the complaint against elective
municipal officials to be under oath in order to merit consideration by the authorities.
Petitioner prays this Honorable Court:
(a) To issue a writ of preliminary injunction against the respondent restraining him, his
agents, attorneys and all persons acting by virtue of his authority from further proceeding
against the petitioner until this case is finally determined by this court;
(b) To declare, after the hearing of this petition, that the respondent is without authority or
jurisdiction to suspend the petitioner from the office of mayor of Makati and to order his
immediate reinstatement in office;
(c) To declare that the respondent has no authority to prefer charges against the petitioner
and to investigate those charges for the grant him that power the respondent would be acting
as prosecutor and judge of the case of his own creation.
Upon the other hand, the Solicitor-General contends in his answer:
1. That section 79 (C) in relation with section 86 of the Revised Administrative Code
expressly empowers the respondent as Secretary of the Interior to "order the investigation of

any act or conduct of any person in the service of any bureau or office under his department"
and in connection therewith to "designate an official or person who shall conduct such
investigation"; (Par. 4.)
2. That although section 2188 of the Revised Administrative Code, invoked by the petitioner,
empowers the provincial governor to `receive and investigate complaints made under oath
against municipal officers for neglect of duty, oppression, corruption or other form of
maladministration of office', said section does not preclude the respondent as Secretary of
the Interior from exercising the power vested in him by section 79 (C) in relation with section
86 of the Revised Administrative Code; and that, moreover, said section 2188 must be read
in relation with section 37 of Act No. 4007, known as the Reorganization Law of 1932; (Par. 4
[b].)
3. That at the commencement of the investigation the petitioner did not question the power or
jurisdiction of the Department of the Interior to investigate the administrative charges against
him but merely contended that the filing of said charges was not in accordance with law for
the reason that they did not bear the oaths of the complainants; (Par. 5.)
4. That the authority of a department head order the investigation of any act or conduct of
any person under his department necessarily carries with it by implication the authority to
take such measures as he may deem necessary to accomplish the purpose of the
investigation, such as by suspending the officer under investigation to prevent coercion of
witnesses; and that, furthermore, the suspension from office of the herein petitioner by the
respondent was authorized by the Chief Executive, who is empowered by section 64 (B) of
the Administrative Code to remove officials from office; (Par. 7.)
5. That the petition does not allege facts and circumstances that would warrant the granting
of the writ of preliminary injunction under section 164 of the Code of Civil Procedure; (Par. 8.)
6. That it is a well-settled rule "that courts of equity have no power to restrain public officers
by injunction from performing any official act which they are by law required to perform, or
acts which are not in excess of the authority and discretion reposed in them." (Par. 9)
The issues presented in this case may be reduced to an inquiry into the legal authority of the
Secretary of the Interior (a) to order an investigation, by a special investigation appointed by him, of
the charges of corruption and irregularity brought to his attention against the mayor of the
municipality of Makati, Province of Rizal, who is the petitioner herein, and (b) to decree the
suspension of the said mayor pending the investigation of the charges.
Section 79 (C) of the Administrative Code provides as follows:
The Department Head shall have direct control, direction, and supervision over all bureaus
and offices under his jurisdiction and may, any provision of existing law to the contrary
notwithstanding, repeal or modify the decisions of the chiefs of said bureaus of offices when
advisable in the public interest.
The Department Head may order the investigation of any act conduct of any person in the
service of any bureau of office under his department and in connection therewith may
appoint a committee or designate an official or person who shall conduct such investigations,
and such committee, official, or person may summon, witness by subpoena and subpoena
duces tecum, administer oath and take testimony relevant to the investigation.

The above section speaks, it is true, of direct control, direction, and supervision over bureaus and
offices under the jurisdiction of the Secretary of the Interior, but this section should be interpreted in
relation to section 86 of the same Code which grants to the Department of the Interior "executive
supervision over the administration of provinces, municipalities, chartered cities and other local
political subdivisions." In the case of Planas vs. Gil (37 Off. Gaz., 1228), we observed that
"Supervision is not a meaningless thing. It is an active power. It is certainly not without limitation, but
it at least implies authority to inquire into facts and conditions in order to render the power real and
effective. If supervision is to be conscientious and rational, and not automatic and brutal, it must be
founded upon a knowledge of actual facts and conditions disclosed after careful study and
investigation." The principle there enunciated is applicable with equal force to the present case.
We hold, therefore, that the Secretary of the Interior is invested with authority to order the
investigation of the charges against the petitioner and to appoint a special investigator for that
purpose.
As regards the challenged power of the Secretary of the Interior to decree the suspension of the
herein petitioner pending an administrative investigation of the charges against him, the question, it
may be admitted, is not free from difficulties. There is no clear and express grant of power to the
secretary to suspend a mayor of a municipality who is under investigation. On the contrary, the
power appears lodged in the provincial governor by section 2188 of the Administrative Code which
provides that "The provincial governor shall receive and investigate complaints made under oath
against municipal officers for neglect of duty, oppression, corruption or other form of
maladministration of office, and conviction by final judgment of any crime involving moral turpitude.
For minor delinquency he may reprimand the offender; and if a more severe punishment seems to
be desirable he shall submit written charges touching the matter to the provincial board, furnishing a
copy of such charges to the accused either personally or by registered mail, and he may in such
case suspend the officer (not being the municipal treasurer) pending action by the board, if in his
opinion the charge be one affecting the official integrity of the officer in question. Where suspension
is thus effected, the written charges against the officer shall be filed with the board within five days."
The fact, however, that the power of suspension is expressly granted by section 2188 of the
Administrative Code to the provincial governor does not mean that the grant is necessarily exclusive
and precludes the Secretary of the Interior from exercising a similar power. For instance, counsel for
the petitioner admitted in the oral argument that the President of the Philippines may himself
suspend the petitioner from office in virtue of his greater power of removal (sec. 2191, as amended,
Administrative Code) to be exercised conformably to law. Indeed, if the President could, in the
manner prescribed by law, remove a municipal official, it would be a legal incongruity if he were to be
devoid of the lesser power of suspension. And the incongruity would be more patent if, possessed of
the power both to suspend and to remove a provincial official (sec. 2078, Administrative Code), the
President were to be without the power to suspend a municipal official. Here is, parenthetically, an
instance where, as counsel for petitioner admitted, the power to suspend a municipal official is not
exclusive. Upon the other hand, it may be argued with some degree of plausibility that, if the
Secretary of the Interior is, as we have hereinabove concluded, empowered to investigate the
charges against the petitioner and to appoint a special investigator for that purpose, preventive
suspension may be a means by which to carry into effect a fair and impartial investigation. This is a
point, however, which, for the reason hereinafter indicated, we do not have to decide.
The Solicitor-General argues that section 37 of Act No. 4007, known as the Reorganization Law of
1932, by providing, "the provisions of the existing law to the contrary notwithstanding," that
"whenever a specific power, authority, duty, function, or activity is entrusted to a chief of bureau,
office, division or service, the same shall be understood as also conferred upon the proper
Department Head who shall have authority to act directly in pursuance thereof, or to review, modify
or revoke any decision or action of said chief of bureau, office, division or service", should be
interpreted to concede to the Secretary of the Interior the power to suspend a mayor of a

municipality. The argument is so generally sweeping that, unless distinctions are made, the effect
would be the complete abrogation at will of the powers of provincial and municipal officials even in
corporate affairs of local governments. Under the theory suggested by the Solicitor-General, the
Secretary of the Interior could, as observed by able counsel for the petitioner, enter into a contract
and sign a deed of conveyance of real property in behalf of a municipality against the opposition of
the mayor thereof who is the local official authorized by law to do so (sec. 2196, Revised
Administrative Code), or in behalf of a province in lieu of the provincial governor thereof (sec
2068, Ibid.), and otherwise exercise powers of corporate character mentioned in sections 2067 and
2175 of the Revised Administrative Code and which are lodged in the corresponding provincial and
municipal officials. And if the power of suspension of the Secretary of the Interior is to be justified on
the plea that the pretended power is governmental and not corporate, the result would be more
disastrous. Then and thereunder, the Secretary of the Interior, in lieu of the mayor of the municipality,
could directly veto municipal ordinances and resolutions under section 2229 of the Revised
Administrative Code; he could, without any formality, elbow aside the municipal mayor and himself
make appointments to all non-elective positions in the municipal service, under section 2199 of the
Revised Administrative Code; he could, instead of the provincial governor, fill a temporary vacancy in
any municipal office under subsection (a), section 2188, as amended, of the said Code; he-could
even directly appoint lieutenants of barrios and wrest the authority given by section 2218 of the
Revised Administrative Code to a municipal councilor. Instances may be multiplied but it is
unnecessary to go any further. Prudence, then, dictates that we should hesitate to accept the
suggestion urged upon us by the Solicitor-General, especially where we find the path indicated by
him neither illuminated by the light of our own experience nor cemented by the virtuality of legal
principles but is, on the contrary, dimmed by the recognition however limited in our own Constitution
of the right of local self-government and by the actual operation and enforcement of the laws
governing provinces, chartered cities, municipalities and other political subdivisions. It is not any
question of wisdom of legislation but the existence of any such destructive authority in the law
invoked by the Government that we are called upon to pass and determine here.
In the deliberation of this case it has also been suggested that, admitting that the President of the
Philippines is invested with the authority to suspend the petitioner, and it appearing that he had
verbally approved or at least acquiesced in the action taken by the Secretary of the Interior, the
suspension of the petitioner should be sustained on the principle of approval or ratification of the act
of the Secretary of the Interior by the President of the Philippines. There is, to be sure, more weight
in this argument than in the suggested generalization of section 37 of Act No. 4007. Withal, at first
blush, the argument of ratification may seem plausible under the circumstances, it should be
observed that there are certain prerogative acts which, by their very nature, cannot be validated by
subsequent approval or ratification by the President. There are certain constitutional power and
prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no
amount of approval or ratification will validate the exercise of any of those powers by any other
person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial
law (par. 3, sec. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6, sec.
11, idem). Upon the other hand, doubt is entertained by some members of the court whether the
statement made by the Secretary to the President in the latter's behalf and by his authority that the
President had no objection to the suspension of the petitioner could be accepted as an affirmative
exercise of the power of suspension in this case, or that the verbal approval by the President of the
suspension alleged in a pleading presented in this case by the Solicitor-General could be considered
as a sufficient ratification in law.
After serious reflection, we have decided to sustain the contention of the government in this case on
the board proposition, albeit not suggested, that under the presidential type of government which we
have adopted and considering the departmental organization established and continued in force by
paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various executive

departments are assistants and agents of the Chief Executive, and except in cases where the Chief
Executive is required by the Constitution or the law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of the secretaries
of such departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.
(Runkle vs. United States [1887], 122 U. S., 543; 30 Law. ed., 1167: 7 Sup. Ct. Rep., 1141; see
also U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., 202;
34 Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey vs.Chapman [1880], 101 U. S., 755; 25 Law. ed.,
915: Wilcox vs. Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.)
Fear is expressed by more than one member of this court that the acceptance of the principle of
qualified political agency in this and similar cases would result in the assumption of responsibility by
the President of the Philippines for acts of any member of his cabinet, however illegal, irregular or
improper may be these acts. The implications, it is said, are serious. Fear, however, is no valid
argument against the system once adopted, established and operated. Familiarity with the essential
background of the type of government established under our Constitution, in the light of certain wellknown principles and practices that go with the system, should offer the necessary explanation. With
reference to the Executive Department of the government, there is one purpose which is crystalclear and is readily visible without the projection of judicial searchlight, and that is, the establishment
of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the
Executive Department, begins with the enunciation of the principles that "The executive power shall
be vested in a President of the Philippines." This means that the President of the Philippines is the
Executive of the Government of the Philippines, and no other. 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" (7 Writings, Ford ed., 498),
and, in the language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the
direction of the President." Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in the matters of that
department where the President is required by law to exercise authority" (Myers vs. United States,
47 Sup. Ct. Rep., 21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160). Secretaries of departments, of
course, exercise certain powers under the law but the law cannot impair or in any way affect the
constitutional power of control and direction of the President. As a matter of executive policy, they
may be granted departmental autonomy as to certain matters but this is by mere concession of the
executive, in the absence of valid legislation in the particular field. If the President, then, is the
authority in the Executive Department, he assumes the corresponding responsibility. The head of a
department is a man of his confidence; he controls and directs his acts; he appoints him and can
remove him at pleasure; he is the executive, not any of his secretaries. It is therefore logical that he,
the President, should be answerable for the acts of administration of the entire Executive
Department before his own conscience no less than before that undefined power of public opinion
which, in the language of Daniel Webster, is the last repository of popular government. These are the
necessary corollaries of the American presidential type of government, and if there is any defect, it is
attributable to the system itself. We cannot modify the system unless we modify the Constitution, and
we cannot modify the Constitution by any subtle process of judicial interpretation or constitution.
The petition is hereby dismissed, with costs against the petitioner. So ordered.
Avancea, C. J., Diaz, and Concepcion, JJ., concur.

Separate Opinions
VILLA-REAL, J., concurring in the result:
I concur in the result. The Secretary of the Interior is nowhere given the power to suspend a
municipal elective officer pending charges, and in the absence of such power he may not suspend
him. The power to suspend cannot be implied even from an arbitrary power to remove, except where
the power to remove is limited to cause; in such case, the power to suspend, made use of as a
disciplinary power pending charges, is regarded as included within the power of removal (46 Corpus
Juris, sec. 142, page 982). Provincial governors alone are expressly empowered to suspend
municipal officers under certain conditions by section 2188 of the Revised Administrative Code, and
the President of the Philippines by section 2191, as amended, of the same Code. Though the
suspension of the petitioner by the Secretary of the Interior was unauthorized, the implied approval
by the President of the Philippines validated such suspension.
IMPERIAL, J., concurring and dissenting:
I concur in the result because in my opinion (1) the President of the Philippines, under sections 64
(b), and 2191 of the Revised Administrative Code, as the latter has been amended, and section 11
(1), Article VII, of the Constitution, is vested with the power to expel and suspend municipal officials
for grave misconduct, and it appears that the suspension was ordered by virtue of that authority; and
(2) the Secretary of the Interior acted within the powers conferred upon him by section 79 (C), in
connection with section 86, of the Revised Administrative Code, as amended, in ordering an
administrative investigation of the charges against the petitioner, in his capacity as mayor of the
municipality of Makati, Province of Rizal.
It is a fact that, as a result of the investigation conducted by the Division of Investigation of the
Department of Justice, the respondent, in turn, ordered the administrative investigation of the
petitioner and recommend his temporary suspension to the President of the Philippines to preclude
him from exerting pressure upon the witnesses who would testify in the investigation, and that the
President of the Philippines, through Secretary Jorge B. Vargas, stated that he had no objection to
the suspension. The act of the President of the Philippines, in my opinion, was an exercise of his
power to suspend the petitioner and the statement that he had no objection was, at bottom, an order
of suspension. The circumstance that in the communication which the respondent addressed to the
petitioner it appeared as though the suspension had been ordered by him, is immaterial and does
not alter the merits of the case, as the facts disclose that the order of suspension came directly from
the President of the Philippines.
However, I dissent from the conclusion of the majority that, under the existing presidential system of
government and in view of the fact that the department secretaries are, in the last analysis, agents of
the executive, the acts of the said officials are presumptively deemed the acts of the executive and
that, consequently, the suspension of the petitioner directed by the respondent should be
considered, under the same theory, as the suspension decreed by the President of the Philippines. I
believe that the principle thus enunciated is at once dangerous and without legal sanction. Under the
law each of these officials has his own powers and duties and I doubt seriously if it has ever been
the intention of the legislative to confuse their duties and prerogatives, for otherwise it would be
difficult, if not impossible, to limit and fix responsibility. The respondent himself could not have so
understood the law when, under the facts, in order to suspend the petitioner he found it necessary to
obtain the express authority of the President of the Philippines.

MORAN, J., concurring and dissenting:


I concur in the result.
The ratio dicidendi of the case is contained in the following paragraph of the majority decision:
. . ., that under the presidential type of government which we have adopted and considering
the departmental organization established and continued in force by paragraph 1, section 12,
Article VII, of our Constitution, all executive and administrative organizations are adjuncts of
the Executive Department, the heads of the various executive departments are assistants
and agents of the Chief Executive, and, except in cases where the Chief Executive is
required by the Constitution or the law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative functions of the
Chief Executive are performed by and through the executive departments, and the acts of
the secretaries of such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive, presumptively the
acts of the Chief Executive. . . .
If by this proposition it is meant that the power of suspension residing in the President may validly be
exercised by the Secretary of the Interior in his own name, and his act, unless disapproved or
reprobated by the President, is presumptively the act of the President, I disagree. The implications
involved in the proposition are serious. Suppose the Secretary of Justice, pending proceedings
against a judge of first instance, suspends him temporarily, a power vested in the President (section
173, Adm. Code), is the suspension valid in the silence of the President? Suppose the Secretary of
Public Works and Communications removes the Director of Posts , is the removal the act of the
President if not disapproved by the latter? Suppose the Secretary of the Interior grants conditional
pardon to a prisoner, is the pardon valid unless reprobated by the President? The answer are selfevident.
It is true that the majority decision makes exception of the powers which the Chief Executive, by
Constitution, by law, or by the exigencies of the situation, should exercise in person. The distinction,
however, thus sought to be established between the powers which the President should exercise in
person and those which he may exercise thru the department secretaries, if it exists at all, is
extremely shadowy and in fact can nowhere be found in the Constitution, in the law or practices of
administration. On the contrary, the weight of wisdom and authority is that powers committed or
intrusted by the Constitution or by law to the President must be exercised by him positively and in
person. The only functions of the President which, in my opinion, may be performed by the
department secretaries are those which are preliminary or preparatory to the exercise of his powers,
such as, in investigation, research and other inquiries which may be necessary for a wise and
judicious exercise of his judgment or discretion. This opinion finds corroboration in section 79-A of
the Administrative Code.
The proposition contained in the majority decision is even of much wider scope than is above stated,
for it conveys the idea that all the functions of the executive branch of the government are in the
President, with the executive departments as mere adjuncts to him and the department secretaries
his mere assistants or agents with no authority, function or responsibility of their own, except those
emanating from the President, and that, therefore, as they cannot act but at the will of the President,
all their acts, unless disapproved or reprobated by the President, are presumptively the acts of the
Presidents. This sweeping statement is undoubtedly inspired by section 1, Article VII, of the
Constitution, which provides that "the executive power shall be vested in a President of the
Philippines." It disregards, however, the true meaning of other provisions of the Constitution, such as
paragraph 1 of section 12 of the same article, which provides that "executive departments of the

present Government of the Philippine Islands shall continue as now authorized by law until the
National Assembly shall provide otherwise." (Emphasis supplied.)
According to section 74 of the Administrative Code ". . . the departments are established for the
proper distribution of the work of the executive, for the performance of the functions expressly
assigned to them by law, and in order that each branch of the administration may have a
chief responsible for its direction and policy." (Emphasis supplied.) To give effect to this provision,
each department head is expressly vested with broad as well as specific powers commensurate with
his responsibility, such as the powers to ". . . promulgate, whenever he may see fit to do so, all rules,
regulations, orders, circulars, . . . necessary to regulate the proper working and harmonious and
efficient administration of each and all of the offices and dependencies of his department, and for the
strict enforcement and proper execution of the laws relative to matters under the jurisdiction of said
department" (section 79-B, Adm. Code); the power of direction and supervision over such bureaus
and offices under his jurisdiction, and to repeal or modify the decisions of the chief of said bureaus
or offices when advisable in the public interest (section 79-C, Adm. Code; section 37, Act No. 4007);
the power to appoint subordinate officers and employees whose appointment is not expressly vested
by law in the President, and to remove and punish them except as specially provided otherwise in
accordance with the Civil Service Law (section 79-D, Adm. Code), etc. All these powers are
continued in force by the Constitution.
Thus, while in one provision the Constitution vests in the President of the Philippines the executive
power of the government, in another the same Constitution recognizes the powers of the department
secretaries conferred upon them by law. The apparent conflict between the two provisions is
reconciled by the Constitution itself by means of the power of control vested in the President over
the executive departments. That power of control could not have been intended to wipe out or
supersede all the powers of the department secretaries, for, otherwise, those powers would not have
been continued in force by the Constitution. It would certainly be an absurdity in the Constitution to
recognize and at the same time abrogate those powers. On the contrary, the creation of the power of
control implies the preservation, not the destruction, of all the powers conferred by law upon the
department secretaries. In fact, the majority admits the existence of those powers, subject, of
course, to the powers of control of the President. Now, the power of control may or may not be
exercised. If not exercised, the acts of the department secretaries in pursuance of their powers
would remain in full force and effect, and are their own acts and not the President's. If exercised, by
way of disapproval or reprobation of the acts of the department secretaries, the acts so reprobated
are still their acts and not the President's.
There is more theory than law in the statement that the personally of the department secretaries is
but the projection of that of the President. There is more truth in the language used by Chief Justice
Taft, as quoted in the majority opinion, to the effect that "each head of a department is, and must be,
the President's alter ego in the matters of that department where the President is required by law to
exercise authority" (emphasis supplied.). For it is only when the President exercises his authority
and powers that the department secretaries act merely as his assistants, agents or advisers, and, in
such cases, their acts are his. But when they act in accordance with the powers vested in them by
law, they act with a personality separate from and no less distinct than that of the President himself,
if the recognition accorded to their powers by the Constitution is to mean anything at all. And the fact
that the government we have instituted is a presidential one in no wise destroys what the law has
created and the Constitution has recognized. The presidential system of government could not have
been intended to supersede a government of laws for a government of men.
If, as stated by the majority, all the official acts of the secretaries of the departments are
presumptively the acts of the President, it must follow that the President is presumptively responsible
therefor. That this corrollary proposition cannot be maintained is obvious. At every instance, he

would be called upon to accountability for acts of which he might not have any knowledge at all and
for which he could in no wise be held responsible. In the complicated activities of each department,
multifarious official acts have to be performed from time to time. Very often these acts are performed
in pursuance of powers and duties expressly lodged in them by law; and, occasionally, upon
authority and direction of the President in the latter's exercise of his power of control. In the
performance of such acts, executive and administrative discretion had to be exercised for which
responsibility must accordingly be exclusive and purely personal. To hold the President
presumptively responsible for such acts would suggest, in effect, the necessity on the part of the
President to exercise constant and unrelaxing vigilance over all the official acts of the secretaries of
the departments, under hazard of being involved in endless difficulties. The manifold exigencies of
government render such a suggestion inconceivable.
My view, therefore, is that the department secretaries may act in a purely advisory capacity or under
the direction and authority of the President in the latter's exercise of his constitutional power of
control, and, in such cases, the proposition contained in the majority decision applies, because then,
the department secretaries act purely for the Chief Executive. However, they may also act in
pursuance of the powers and duties conferred upon them by law and continued in force by the
Constitution, and, unless the President desires to intervene, in appropriate cases, by interposing his
constitutional power of control, the acts of the department secretaries are exclusively their own, and
they are likewise exclusively responsible therefor. It follows that when a department secretary acts in
his own name and not by order or authority of the President, he is presumed to be so acting in
pursuance of a power conferred upon him by law, and when the power is not thus conferred, his act
is null and void. And if the power is conferred expressly upon the President, he must exercise it
positively and in person with such assistance, advice and recommendation of the corresponding
department head, as he himself may choose to demand. Accordingly, the bare statement made by
the President of his non-objection to the action taken by the Secretary of the Interior in the present
case is not a sufficient exercise of his power to suspend, for it may mean neither approval nor
disapproval. The President probably believed, and indeed rightly as I shall hereafter show, that the
power to suspend the petitioner also resided in the Secretary of the Interior, and called upon to
exercise his power of supervision, he confined himself to making a mere statement of non-objection
to the latter's exercise of his power. This, in my opinion, is the most rational explanation of the
passive attitude thus observed by the President. I am almost sure that had he intended to exercise
his own power to suspend, he would have done so, as usually, in a manner that would not admit of
any possibility of doubt.
Moreover, besides the written statement of non-objection made by the President, it is claimed by the
Solicitor-General that the President expressly and orally approved the order of suspension issued by
the Secretary of the Interior. Such supposed oral approval alleged in the respondent's answer is,
however, deemed controverted by the petitioner, according to section 104 of Act No. 190, and, not
being supported by proof, it cannot be considered as true fact in the disposition of this case.
If I agree with the result, it is not therefore on the broad proposition relied upon by the majority, but
from what is necessary implied from express provisions of law. Section 37 of Act No. 4007 provides:
The provisions of the existing law to the contrary notwithstanding, whenever a specific
power, authority, duty, function or activity is entrusted to a chief of bureau, office, division or
service, the same shall be understood as also conferred upon the proper Department Head
who shall have authority to act directly in pursuance thereof, or to review, modify or revoke
any decision or action of said chief of bureau, office, division or service.
There can be no question that the word "division" in the above provision has no other reference than
to provinces and municipalities (Chapter 2 and section 86, Adm. Code). It is then evident that this

provision confers upon the Secretary of the Interior the power residing in the provincial governor
(section 2188, Adm. Code) to decree the suspension of the petitioner pending an administrative
investigation of the charges against him. That this is the true meaning of the law, the majority does
not question.
Fear, however, has been expresses in the majority opinion that this view may result in the complete
abrogation of the powers of provincial and municipal officials even in corporate affairs of local
governments. Instances are cited in which the Secretary of the Interior may exercise for himself the
powers vested by law in provincial governors and municipal mayors as to matters of both
governmental and corporate functions of provinces and municipalities, such as, the power to veto,
the power to appoint, and the power to enter into contracts. Whether or not the Secretary of the
Interior can thus exercise the powers vested by law in provincial and municipal executives in the
instances cited, to the complete abrogation of provincial and municipal autonomy, is a question
which I need not discuss now. Other provisions of law and a number of collateral questions may
have to be inquired into if any safe conclusion is to be formed. But even if, as feared, the law has the
effect of nullifying the powers conferred upon provincial and municipal executives, can there be any
doubt that the law can do so? The same authority that creates those powers may withdraw or qualify
them at will or provide effective measures of supervision over their exercise. The extent or even the
existence of local autonomy is a matter which lies within the exclusive prerogative of the Legislature
to define. If the law is clear, or duty to apply it is just as clear, irrespective of how destructive it may
be of the autonomy of local governments. To refuse to apply a law, which is otherwise applicable and
is valid and constitutional, simply because it does violence to our theory of government, would, in
effect, be imposing ourselves upon the legislature department of the government and an intrusion
into its own sphere of constitutional authority.
Moreover, the law is not of such "destructive authority" as the majority has pictured it to be. The
philosophy behind this provision is apparent. It is intended to supply possible omissions or inactions
on the part of the subordinate officers concerned by reason of the entanglement arising from
partisan activities. The power which the law confers upon the department head is undoubtedly
susceptible of abuses. But what power is not susceptible of abuse? In the enactment of the law, the
legislature undoubtedly relied much on the sense of patriotism and sound judgment of the
department head. It is perhaps the intention of the law that the department head should exercise his
power in a manner compatible with the autonomy given the local governments, and that he should
act directly only when the exigencies of the situation require him to act in the interest of the Nation.
Thus, the department head is given ample discretion. The possibility of a mischievous or disastrous
abuse of power on his part is not entirely without any remedy at all. The presidential power of control
over executive departments and the existence of judicial remedies may afford effective check or
redress. In the instant case, there is no showing that the Secretary of the Interior has abused, or
even intended to abuse the power of suspension. If a capricious and whimsical use of such power
presents itself to us for determination in some future time, then and there must we declare where
one power begins and the other ends.
As the law, therefore, is not unconstitutional, we would be ignoring it clear provision if not applied in
this case.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17169

November 30, 1963

ISIDRO C. ANG-ANGCO, petitioner,


vs.
HON. NATALIO P. CASTILLO, ET AL., respondents.
Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J.:
On October 8, 1956, the Pepsi-Cola Far East Trade Development Co., Inc. wrote a letter to the
Secretary of Commerce and Industry requesting for special permit to withdraw certain commodities
from the customs house which were imported without any dollar allocation or remittance of foreign
exchange. Said commodities consisted of 1,188 units of pepsi-cola concentrates which were not
covered by any Central Bank release certificate. On the same date, the company addressed an
identical request to the Secretary of Finance who was also the Chairman of the Monetary Board of
the Central Bank. Senator Pedro Sabido, in behalf of the company, likewise wrote said official urging
that authority be given to withdraw the abovementioned concentrates. Not content with this step, he
also wrote to Dr. Andres Castillo, Acting Governor of the Central Bank, urging, the same matter.
Then Secretary Hernandez wrote another letter to Dr. Castillo stating, "Senator Sabido is taking this
to you personally. Unless we have legal objection, I would like to authorize the withdrawal of the
concentrates upon payment of all charges in pesos. Please expedite action."
Almost at the same time, the Import-Export Committee of the Central Bank, thru Mr. Gregorio
Licaros, submitted to the Monetary Board a memorandum on the joint petition of the company and
Sabido Law Office for authority to withdraw the concentrates from the customs house stating therein
that it sees no objection to the proposal. The Monetary Board, however, failed to take up the matter
in its meeting of October 12, 1956 for the reason that the transaction did not involve any dollar
allocation or foreign exchange, and of this decision Mr. Licaros was informed.
Having failed to secure the necessary authority from the Central Bank, on October 13, 1956, the
counsel of the Pepsi-Cola Far East Trade Development Co., Inc., approached Collector of Customs
Isidro Ang-Angco in an attempt to secure from him the immediate release of the concentrates, but
this official seeing perhaps that the importation did not carry any release certificate from the Central
Bank advised the counsel to try to secure the necessary release certificate from the No-Dollar Import
Office that had jurisdiction over the case. In the morning of the same day, Mr. Aquiles J. Lopez, of
said Office, wrote a letter addressed to the Collector of Customs stating, among other things, that his
office had no objection to the release of the 1,188 units of concentrates but that it could not take
action on the request as "the same is not within the jurisdiction of the No-Dollar Import Office within
the contemplation of R.A. No. 1410." The counsel already referred to above showed the letter to
Collector of Customs Ang-Angco who upon perusing it still hesitated to grant the release. Instead he
suggested that the letter be amended in order to remove the ambiguity appearing therein, but Mr.
Lopez refused to amend the letter stating that the same was neither a permit nor a release.
Secretary of Finance Hernandez having been contacted by telephone, Collector of Customs AngAngco read to him the letter after which the Secretary verbally expressed his approval of the release
on the basis of said certificate. Collector Ang-Angco, while still in doubt as to the propriety of the
action suggested, finally authorized the release of the concentrates upon payment of the
corresponding duties, customs charges, fees and taxes.

When Commissioner of Customs Manuel P. Manahan learned of the release of the concentrates in
question he immediately ordered their seizure but only a negligible portion thereof remained in the
warehouse. Whereupon, he filed an administrative complaint against Collector of Customs AngAngco charging him with having committed a grave neglect of duty and observed a conduct
prejudicial to the best interest of the customs service. On the strength of this complaint President
Ramon Magsaysay constituted an investigating committee to investigate Ang-Angco composed of
former Solicitor General Ambrosio Padilla, as Chairman, and Atty. Arturo A. Alafriz and Lt. Col. Angel
A. Salcedo, as members. Together with Collector Ang-Angco, Mr. Aquiles J. Lopez, was also
investigated by the same Committee, who was also charged in a separate complaint with serious
misconduct in office or conduct prejudicial to the best interest of the State. As a result, Collector AngAngco was suspended from office in the latter part of December, 1956.
After the investigation, the committee submitted to President Magsaysay its report recommending
that a suspension of 15 days, without pay, be imposed upon Ang-Angco chargeable against the
period of his suspension. On April 1, 1957, Collector Ang-Angco was reinstated to his office by
Secretary Hernandez, but the decision on the administrative case against him remained pending
until the death of President Magsaysay. After around three years from the termination of the
investigation during which period Ang-Angco had been discharging the duties of his office, Executive
Secretary Natalio P. Castillo, by authority of the President, rendered a decision on the case on
February 12, 1960 finding Ang-Angco "guilty of conduct prejudicial to the best interest of the
service", and considering him resigned effective from the date of notice, with prejudice to
reinstatement in the Bureau of Customs.
Upon learning said decision from the newspapers, Collector Ang-Angco wrote a letter to President
Carlos P. Garcia calling attention to the fact that the action taken by Secretary Castillo in removing
him from office had the effect of depriving him of his statutory right to have his case originally
decided by the Commissioner of Civil Service, as well as of his right of appeal to the Civil Service
Board of Appeals, whose decision under Republic Act No. 2260 is final, besides the fact that such
decision is in violation of the guaranty vouchsafed by the Constitution to officers or employees in the
civil service against removal or suspension except for cause in the manner provided by law.
In a letter dated February 16, 1960, Secretary Castillo, also by authority of the President, denied the
request for reconsideration. Not satisfied with this resolution, Collector Ang-Angco sent a
memorandum to President Garcia reiterating once more the same grounds on which he predicated
his request for reconsideration. Again Secretary Castillo, also by authority of the President, in letter
dated July 1, 1960, denied the appeal. In this instance, Secretary Castillo asserted that the President
virtue of his power of control over all executive departments, bureaus and offices, can take direct
action and dispose of the administrative case in question inasmuch as the provisions of law that
would seem to vest final authority in subordinate officers of the executive branch of the government
over administrative matters falling under their jurisdiction cannot divest the President of his power of
control nor diminish the same.
Hence, after exhausting all the administrative remedies available to him to secure his reinstatement
to the office from which he was removed without any valid cause or in violation of his right to due
process of law, Collector Ang-Angco filed before this Court the present petition for certiorari,
prohibition and mandamus with a petition for the issuance of a preliminary mandatory injunction. The
Court gave due course to the petition, but denied the request for injunction.

The main theme of petitioner is that respondent Executive Secretary Natalio P. Castillo in acting on
his case by authority of the President in the sense of considering him as resigned from notice
thereof, violated the guaranty vouchsafed by the Constitution to officers and employees in the
classified service in that he acted in violation of Section 16 (i) of the Civil Service Act of 1959 which
vests in the Commissioner of Civil Service the original and exclusive jurisdiction to decide
administrative cases against officers and employees in the classified service, deprived him of his
right of appeal under Section 18 (b) of the same Act to the Civil Service Board of Appeals whose
decision on the matter is final, and removed him from the service without due process in violation of
Section 32 of the same Act which expressly provides that the removal or suspension of any officer or
employee from the civil service shall be accomplished only after due process, and of Section 4,
Article XII of our Constitution which provides that "No officer or employee in the civil service shall be
removed except for cause as provided for by law." Since petitioner is an officer who belongs to the
classified civil service and is not a presidential appointee, but one appointed by the Secretary of
Finance under the Revised Administrative Code, he cannot be removed from the service by the
President in utter disregard of the provisions of the Civil Service Act of 1959.
Respondents, on their part, do not agree with this theory entertained by petitioner. They admit that if
the theory is to be considered in the light of the provisions of the Civil Service Act of 1959, the same
may be correct, for indeed the Civil Service Law as it now stands provides that all officers and
employees who belong to the classified service come under the exclusive jurisdiction of the
Commissioner of Civil Service and as such all administrative cases against them shall be indorsed to
said official whose decision may be appealed to the Civil Service Board of Appeals from whose
decision no further appeal can be taken. They also admit that petitioner belongs to the classified civil
service. But it is their theory that the pertinent provisions of the Civil Service Law applicable to
employees in the classified service do not apply to the particular case of petitioner since to hold
otherwise would be to deprive the President of his power of control over the officers and employees
of the executive branch of the government. In other words, respondents contend that, whether the
officers or employees concerned are presidential appointees or belong to the classified service, if
they are all officers and employees in the executive department, they all come under the control of
the President and, therefore, his power of removal may be exercised over them directly without
distinction. Indeed, respondents contend that, if, as held in the case ofNegado v. Castro, 55 O.G.,
10534, the President may modify or set aside a decision of the Civil Service Board of Appeals at the
instance of the office concerned, or the respondent employee, or may even do so motu propio, there
would be in the final analysis no logical difference between removing petitioner by direct action of the
President and separating him from the service by ultimate action by the President should an appeal
be taken from the decision of the Civil Service Board of Appeals to him, or if in his discretion he
may motu proprio consider it necessary to review the Board's decision. It is contended that this ruling
still holds true in spite of the new provision wrought into the law by Republic Act 2260 which
eliminated the power of review given to the President because the power of control given by the
Constitution to the President over officers and employees in the executive department can only be
limited by the Constitution and not by Congress, for to permit Congress to do so would be to
diminish the authority conferred on the President by the Constitution which is tantamount to
amending the Constitution itself (Hebron v. Reyes, L- 9124, July 28, 1958). Indeed this is the
argument invoked by respondent Castillo in taking direct action against petitioner instead of following
the procedure outlined in the Civil Service Act of 1959 as may be seen from the following portion of
his decision.
In connection with the second ground advanced in support of your petition, it is contended
that in deciding the case directly, instead of transmitting it to the Commissioner of Civil

Service for original decision, his Office deprived the respondent of his right to appeal to the
Civil Service Board of Appeals. This contention overlooks the principle that the President
may modify or set aside a decision of the Civil Service Board of Appeals at the instance of
either the office concerned or the respondent employee, or may even do so motu proprio
(Negado vs. Castro, 55 O.G, No. 51, p. 10534, Dec. 21, 1959). There would therefore be no
difference in effect between direct action by the President and ultimate action by him should
an appeal be taken from the decision of the Commissioner of Civil Service or the Civil
Service Board of Appeals. The result is that the President's direct action would be the final
decision that would be reached in case an appeal takes its due course.
Thus, we see that the main issue involved herein is whether the President has the power to take
direct action on the case of petitioner even if he belongs to the classified service in spite of the
provisions now in force in the Civil Service Act of 1959. Petitioner sustains the negative contending
that the contrary view would deprive him of his office without due process of law while respondents
sustain the affirmative invoking the power of control given to the President by the Constitution over
all officers and employees, belonging to the executive department.
To begin with, we may state that under Section 16 (i) of the Civil Service Act of 1959 it is the
Commissioner of Civil Service who has original and exclusive jurisdiction to decide administrative
cases of all officers and employees in the classified service for in said section the following is
provided: "Except as otherwise provided by law, (the Commissioner shall) have final authority to
pass upon the removal, separation and suspension of all permanent officers and employees in the
competitive or classified service and upon all matters relating to the employees." The only limitation
to this power is that the decision of the Commissioner may be appealed to the Civil Service Board of
Appeals, in which case said Board shall decide the appeal within a period of 90 days after the same
has been submitted for decision, whose decision in such case shall be final (Section 18, Republic
Act 2260). It should be noted that the law as it now stands does not provide for any appeal to the
President, nor is he given the power to review the decision motu proprio, unlike the provision of the
previous law, Commonwealth Act No. 598, which was expressly repealed by the Civil Service Act of
1959 (Rep. Act 2260), which provides that the decision of the Civil Service Board of Appeals may be
reversed or modified motu proprio by the President. It is, therefore, clear that under the present
provision of the Civil Service Act of 1959, the case of petitioner comes under the exclusive
jurisdiction of the Commissioner of Civil Service, and having been deprived of the procedure laid
down therein in connection with the investigation and disposition of his case, it may be said that he
has been deprived of due process as guaranteed by said law.
It must, however, be noted that the removal, separation and suspension of the officers and
employees of the classified service are subject to the saving clause "Except as otherwise provided
by law" (Section 16 [i], Republic Act No. 2260). The question then may be asked: Is the President
empowered by any other law to remove officers and employees in the classified civil service?
The only law that we can recall on the point is Section 64 (b) of the Revised Administrative Code, the
pertinent portion of which we quote:
(b) To remove officials from office conformably to law and to declare vacant the offices held
by such removed officials. For disloyalty to the (United States) Republic of the Philippines,
the (Governor-General) President of the Philippines may at any time remove a person from
any position of trust or authority under the Government of the (Philippine Islands)
Philippines.

The phrase "conformably to law" is significant. It shows that the President does not have blanket
authority move any officer or employee of the government but his power must still be subject to the
law that passed by the legislative body particularly with regard the procedure, cause and finality of
the removal of persons who may be the subject of disciplinary action. Here, as above stated we
have such law which governs action to be taken against officers and employees in classified civil
service. This law is binding upon President.
Another provision that may be mentioned is Section (D) of the Revised Administrative Code, which
provides:
Power to appoint and remove. The Department Head, the recommendation of the chief of
the Bureau or office concerned, shall appoint all subordinate officers and employees
appointment is not expressly vested by law in the (Governor-General) President of the
Philippines, and may remove or punish them, except as especially provided otherwise, in
accordance the Civil Service Law.
The phrase "in accordance with the Civil Service is also significant. So we may say that even
granting for administrative purposes, the President of the Philippines is considered as the
Department Head of the Civil Service Commission, his power to remove is still subject to the Civil
Service Act of 1959, and we already know with regard to officers and employees who belong to
classified service the finality of the action is given to the Commissioner of Civil Service or the Civil
Board of Appeals.
Let us now take up the power of control given to President by the Constitution over all officers and
employees in the executive department which is now in by respondents as justification to override
the specific visions of the Civil Service Act. This power of control couched in general terms for it does
not set in specific manner its extent and scope. Yes, this Court in the case of Hebron v.
Reyes, supra, had already occasion to interpret the extent of such power to mean "the power of an
officer to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the latter," 1 to
distinguish it from the power of general supervision over municipal government, but the decision
does not go to the extent of including the power to remove an officer or employee in the executive
department. Apparently, the power merely applies to the exercise of control over the acts of the
subordinate and not over the actor or agent himself of the act. It only means that the President may
set aside the judgment or action taken by a subordinate in the performance of his duties.
That meaning is also the meaning given to the word "control" as used in administrative law. Thus,
the Department Head pursuant to Section 79(C) is given direct control of all bureaus and offices
under his department by virtue of which he may "repeal or modify decisions of the chiefs of said
bureaus or offices", and under Section 74 of the same Code, the President's control over the
executive department only refers to matters of general policy. The term "policy" means a settled or
definite course or method adopted and followed by a government, body, or individual, 2 and it cannot
be said that the removal of an inferior officer comes within the meaning of control over a specific
policy of government.
But the strongest argument against the theory of respondents is that it would entirely nullify and set
at naught the beneficient purpose of the whole civil service system implanted in this jurisdiction,
which is to give stability to the tenure of office of those who belong to the classified service, in
derogation of the provisions of our Constitution which provides that "No officer or employee in the

civil service shall be removed or suspended except for cause as provided by law" (Section 4, Article
XII, Constitution).Here, we have two provisions of our Constitution which are apparently in conflict,
the power of control by the President embodied in Section 10 (1), Article VII, and the protection
extended to those who are in the civil service of our government embodied in Section 4, Article XII. It
is our duty to reconcile and harmonize these conflicting provisions in a manner that may give to both
full force and effect and the only logical, practical and rational way is to interpret them in the manner
we do it in this decision. As this Court has aptly said in the case of Lacson v. Romero:
... To hold that civil service officials hold their office at the will of the appointing power subject
to removal or forced transfer at any time, would demoralize and undermine and eventually
destroy the whole Civil Service System and structure. The country would then go back to the
days of the old Jacksonian Spoils System under which a victorious Chief Executive, after the
elections could if so minded, sweep out of office, civil service employees differing in Political
color or affiliation from him, and sweep in his Political followers and adherents, especially
those who have given him help, political or otherwise. (Lacson v. Romero, 84 Phil. 740, 754)
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 (Lacson
V. Romero, supra), but not with regard to those officers or employees who belong to the classified
service for as to them that inherent power cannot be exercised. 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 department" (Article VII, Section 10 [3],
Constitution). 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 constitutional authority. One such law is the Civil Service Act of 1959.
We have no doubt that when Congress, by law, vests the appointment of inferior officers in
the heads of departments it may limit and restrict power of removal as it seem 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 officers so appointed. The head of a department has no constitutional
prerogative of appointment to officers independently of legislation of Congress, and by such
legislation he must be governed, not only in making appointments but in all that is incident
thereto. (U.S. v. Perkins, 116 U.S. 483)
In resume, we may conclude that the action taken by respondent Executive Secretary, even with the
authority of the President, in taking direct action on the administrative case of petitioner, without
submitting the same to the Commissioner of Civil Service, is contrary to law and should be set aside.
WHEREFORE, it is hereby ordered that petitioner be immediately reinstated to his office as Collector
of Customs for the Port of Manila, without prejudice of submitting his case to the Commissioner of
Civil Service to be dealt with in accordance with law. No costs.
Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Parades, Dizon, Regala and Makalintal,
JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-22754

December 31, 1965

RUBEN A. VILLALUZ, petitioner,


vs.
CALIXTO ZALDIVAR, ET AL., respondents.
Magtanggol C. Gunigundo and Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J.:
Petitioner seeks his reinstatement as Administrator of the Motor Vehicles Office with payment of
back salaries in a petition filed before this Court on April 1, 1964.
He alleged that he was nominated as chief of said office on May 20, 1958 and two days thereafter
his nomination was confirmed by the Commission on Appointments; that on May 26, 1958 he took
his oath of office as such after having been informed of his nomination by then Acting Assistant
Executive Secretary Sofronio C. Quimson; that in a letter dated January 28, 1960 addressed to the
President of the Philippines by Congressman Joaquin R. Roces as Chairman of the Committee on
Good Government of the House of Representatives, the latter informed the former of the findings
made by his Committee concerning alleged gross mismanagement and inefficiency committed by
petitioner in the Motor Vehicles Office which are summed up in the letter, as follows: (1) malpractice
in office resulting in huge losses to the government; (2) failure to correct inadequate controls or
intentional toleration of the same, facilitating thereby the commission of graft and corruption; and (3)
negligence to remedy unsatisfactory accounting; that as a result of said findings. Congressman
Roces recommended the replacement of petitioner and of his assistant chief Aurelio de Leon as well
as the complete revamp of the offices coming under the Motor Vehicles Office by the new chief who
may be appointed thereafter; that having been officially informed of the content of said letter, then
Secretary of Public Works and Communications furnished petitioner with a copy thereof requiring
him to explain within 72 hours why no administrative action should be taken against him relative to
the charges contained in the letter; that petitioner answered the letter as required wherein he
explained and refuted in detail each and everyone of the charges contained in the letter of
Congressman Roces; that on February 15, 1960, the then Executive Secretary Natalio P. Castillo
suspended petitioner as Administrator of the Motor Vehicles Office, having thereupon created an
investigating committee with the only purpose of investigating the charges against petitioner and his
assistant Aurelio de Leon, and to undertake the investigation a prosecution panel was created
headed by Special Prosecutor Emilio A. Gancayco; that after the investigation said committee
submitted its report to the President of the Philippines who thereafter issued Administrative Order
No. 332 decreeing the removal from office of petitioner; that as a result of petitioner's removal
Apolonio Ponio was appointed to take his place as acting administrator; and that, after having been
officially notified of his removal, petitioner filed a motion for reconsideration and/or reinstatement,
and when this was denied, he filed the instant petition before this Court.

Respondents in their answer denied the claim of petitioner that the charges contained in the letter of
Congressman Roces were not directed against him but against his office in general for the truth is
that he was, specifically charged with mismanagement, gross inefficiency and negligence in the
performance of his duties as Chief of the Motor Vehicles Office, and as a result he was required to
the same within 72 hours to explain why no disciplinary action should be taken against him.
Respondents also denied that petitioner was investigated without being accorded due process is
required by law for in fact he was given every reasonable opportunity to present his defense, to
secure the attendance of witnesses, and to produce documents in his behalf in a manner consistent
with administrative due process. Respondent also averred that the President of the Philippines,
contrary to petitioner's claim, has jurisdiction to investigate and remove him since he is a presidential
appointee who belongs to the non-competitive or unclassified service under Section 5 of Republic
Act No. 2260. Respondents finally averred that the letter of Congressman Joaquin R. Roces is in
effect a valid administrative complaint because it contained specific charges which constitute just
causes for his suspension and removal; that said charges need not be sworn to for the Chief
Executive, as administrative head of petitioner, is empowered to commence administrative
proceedings motu proprio pursuant to Executive Order No. 370, series of 1941, without need of any
previous verified complaint. And as special defense respondents averred that petitioner is guilty of
laches for having allowed almost four years before instituting the present action.
There is merit in the claim that petitioner, being a presidential appointee, belongs to the noncompetitive or unclassified service of the government and is such he can only be investigated and
removed from office after due hearing the President of the Philippines under the principle that "the
power to remove is inherent in the power to appoint" as can be clearly implied from Section 5 of
Republic Act No. 2260. Such is what we ruled in the recent case of Ang-Angco wherein on this point
we said:
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 (Lacson v. Romero, supra), but not with regard to those officers or
employees who belong, to the classified service for as to them that inherent power cannot be
exercised. This is in line with the provision of our Constitution which says that the "Congress
may by law vest the appointment of inferior officers, in the President alone, in the courts, or
in the head of departments" (Article VII, Section 10 [3], Constitution). (Ang-Angco v. Castillo,
et al., L-17169, November 30, 1963).
Consequently, as a corollary to the foregoing ruling, we may state that the Commissioner of Civil
Service is without jurisdiction to hear and decide the administrative charges filed against petitioner
because the authority of said Commissioner to pass upon questions of suspension, separation, or
removal can only be exercised with reference to permanent officials and employees in the classified
service to which classification petitioner does not belong. This is also what we said in the Ang-Angco
case when, in interpreting Section 16 (i) of Republic Act No. 2260, we emphasized that only
permanent officers and employees who belong to the classified service come under the exclusive
jurisdiction of the Commissioner of Civil Service.
There is, therefore, no error of procedure committed by respondents insofar as the investigation and
disciplinary action taken against petitioner is concerned, even if he is under the control and
supervision of the Department of Public Works, in view of the reason we have already stated that he

is a presidential appointee who comes exclusively under the jurisdiction of the President. The
following rationale supports this view:
Let us now take up the power of control given to the President by the Constitution over all
officers and employees in the executive departments which is now involved by respondent
as justification to override the specific provisions of the Civil Service Act. This power of
control is couched in general terms for it does not set in specific manner its extent and
scope. Yes, this Court in the case of Hebron v. Reyes, supra, occasion to interpret the extent
of such power to mean "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter," to distinguish it from the power of general supervision over
municipal government, but the decision does not go to the extent of including the power to
remove an officer or employee in the executive department. Apparently, the power merely
applies to the exercise of control over the acts of the subordinate and not over the actor or
agent himself of the act. It only means that the President may set aside the judgment or
action taken by a subordinate in the performance of his duties.
That meaning is also the meaning given to the word "control" as used in administrative law.
Thus, the Department Head pursuant to Section 79 (c) is given direct control of all bureaus
and offices under his department by virtue of which he may "repeal or modify decisions of
the chiefs of said bureaus or offices," and under Section 74 of the same Code, the
President's control over the executive department only refers to matters of general policy.
The term "policy" means a settled or definite course or method adopted and followed by a
government, body or individual, and it cannot be said that the removal of an inferior officer
comes within the meaning of control over a specific policy of government. (Ang-Angco v.
Castillo, et al.,supra)
With regard to the claim that the administrative proceedings conducted against petitioner which led
to his separation are illegal simply because the charges preferred against him by Congressman
Roces were not sworn to as required by Section 72 of Republic Act No. 2260, this much we can say:
said proceedings having been commenced against petitioner upon the authority of the Chief
Executive who was his immediate administrative head, the same may be commenced by him motu
proprio without previous verified complaint pursuant to Executive Order No. 370, series of 1941, the
pertinent provisions of which are is follows:
(1) Administrative proceedings may be commenced a government officer or employee by the
head or chief of the bureau or office concerned motu proprio or upon complaint of any
person which shall be subscribed under oath by the complainant: Provided, That if a
complaint is not or cannot be sworn to by the complainant, the head or chief of the bureau or
office concerned may in his discretion, take action thereon if the public interest or the special
circumstances of the case, so warrant.1
Finally, on the theory that the instant petition partakes of the nature of quo warranto which seeks
petitioners reinstatement to his former position as Administrator of the Motor Vehicles Office, we are
of the opinion that it has now no legal raison d'etre for having been filed more than one year after its
cause of action had accrued. As this Court has aptly said: "a delay of slightly over one (1) year was
considered sufficient ... to be an action formandamus, by reason of laches or abandonment of office.
We see no reason to depart from said view in the present case, petitioner herein having allowed

about a year and a half to elapse before seeking reinstatement." (Jose V. Lacson, et al., L-10177,
May 17, 1957).
WHEREFORE, petition is denied. No costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal and Bengzon,
JJ., concur.
Zaldivar, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 168613

March 5, 2013

ATTY. MA. ROSARIO MANALANG-DEMIGILLO, Petitioner,


vs.
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES (TIDCORP),
and its BOARD OF DIRECTORS, Respondents.
x-----------------------x
G.R. No. 185571
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES, Petitioner,
vs.
MA. ROSARIO S. MANALANG-DEMIGILLO, Respondent.
DECISION
BERSAMIN, J.:
A reorganization undertaken pursuant to a specific statutory authority by the Board of Directors of a
government-owned and government-controlled corporation is valid.
Antecedents
On February 12, 1998, the Philippine Export and Foreign Loan Guarantee was renamed Trade and
Investment Development Corporation of the Philippines (TIDCORP) pursuant to Republic Act No.
8494 entitled An Act Further Amending Presidential Decree No. 1080, As Amended, by Reorganizing
And Renaming the Philippine Export and Foreign Loan Guarantee Corporation, Expanding Its
Primary Purpose, and for Other Purposes.
Republic Act No. 8494 reorganized the structure of TIDCORP. The issuance of appointments in
accordance with the reorganization ensued. Petitioner Rosario Manalang-Demigillo (Demigillo) was

appointed as Senior Vice President (PG 15) with permanent status, and was assigned to the Legal
and Corporate Services Department (LCSD) of TIDCORP.
In 2002, TIDCORP President Joel C. Valdes sought an opinion from the Office of the Government
Corporate Counsel (OGCC) relative to TIDCORPs authority to undertake a reorganization under the
law, whose Section 7 and Section 8 provide as follows:
Section 7. The Board of Directors shall provide for an organizational structure and staffing pattern for
officers and employees of the Trade and Investment Development Corporation of the Philippines
(TIDCORP) and upon recommendation of its President, appoint and fix their remuneration,
emoluments and fringe benefits: Provided, That the Board shall have exclusive and final authority to
appoint, promote, transfer, assign and re-assign personnel of the TIDCORP, any provision of existing
law to the contrary notwithstanding. x x x
Section 8. All incumbent personnel of the Philippine Export and Foreign Loan Guarantee Corporation
shall continue to exercise their duties and functions as personnel of the TIDCORP until
reorganization is fully implemented but not to exceed one (1) year from the approval of this Act. The
Board of Directors is authorized to provide for separation benefits for those who cannot be
accommodated in the new structure. All those who shall retire or are separated from the service on
account of the reorganization under the preceding Section shall be entitled to such incentives, as are
authorized by the Corporation, which shall be in addition to all gratuities and benefits to which they
may be entitled under existing laws.
In Opinion No. 221 dated September 13, 2002,1 then Government Corporate Counsel Amado D.
Valdez opined as follows:
There is no question on the power of the PhilEXIM (also known as TIDCORP) Board of Directors to
undertake a reorganization of the corporations present organizational set-up. In fact, the authority to
provide for the corporations organizational structure is among the express powers granted to
PhilEXIM through its Board.
As to the one-year period to implement a reorganization mentioned in Section 8 of RA 8494, it is our
considered opinion that the same provision refers to the initial reorganization to effect transition from
the Philippine Export and Foreign Loan Guarantee Corporation (Philguarantee) to what is now
known as the Trade and Investment Corporation of the Philippines (TIDCORP). The one-year period
does not, however, operate as a limitation that any subsequent changes in the organizational set-up
pursuant to the authority of the Board to determine the corporations organizational structure under
Section 7 of RA 8494, which is designed to make the corporation more attuned to the needs of the
people or, in this case, the sector of the Philippine economy that it serves, can only be made during
the same one-year period.
On the basis of OGCC Opinion No. 221, the Board of Directors passed Resolution No. 1365, Series
of 2002, on October 22, 2002 to approve a so-called Organizational Refinement/Restructuring Plan
to implement a new organizational structure and staffing pattern, a position classification system,
and a new set of qualification standards.
During the implementation of the Organizational Refinement/Restructuring Plan, the LCSD was
abolished. According to the List of Appointed Employees under the New Organizational Structure of
TIDCORP as of November 1, 2002, Demigillo, albeit retaining her position as a Senior Vice

President, was assigned to head the Remedial and Credit Management Support Sector (RCMSS).
On the same date, President Valdes issued her appointment as head of RCMSS, such appointment
being in nature a reappointment under the reorganization plan.
On December 13, 2002, President Valdes issued a memorandum informing all officers and
employees of TIDCORP that the Board of Directors had approved on December 11, 2002 the
appointments issued pursuant to the newly approved positions under the Organizational
Refinement/Restructuring Plan.
In her letter dated December 23, 2002 that she sent to TIDCORP Chairman Jose Isidro Camacho,
however, Demigillo challenged before the Board of Directors the validity of Resolution No. 1365 and
of her assignment to the RCMSS. She averred that she had been thereby illegally removed from her
position of Senior Vice President in the LCSD to which she had been previously assigned during the
reorganization of July 1998. She insisted that contrary to OGCC Opinion No. 221 dated September
13, 2002 the Board of Directors had not been authorized to undertake the reorganization and
corporate restructuring.
On January 31, 2003, pending determination of her challenge by the Board of Directors, Demigillo
appealed to the Civil Service Commission (CSC), raising the same issues.
TIDCORP assailed the propriety of Demigillos appeal to the CSC, alleging that her elevation of the
case to the CSC without the Board of Directors having yet decided her challenge had been improper
and a clear case of forum-shopping.
Later on, however, TIDCORP furnished to the CSC a copy of Board Decision No. 03-002 dismissing
Demigillos appeal for its lack of merit, thereby rendering the question about the propriety of
Demigillos appeal moot and academic. Board Decision No. 03-002 pertinently reads as follows:
Atty. Demigillo failed to show to the Board that she was prejudiced in the implementation of the
TIDCORP organizational refinements/restructuring. She was reappointed to the same position she
was holding before the reorganization. She was not demoted in terms of salary, rank and status.
There was a (sic) substantial compliance with the requirements of RA 6656, particularly on
transparency. More importantly, the said organizational refinements done and adoption of a new
compensation structure were made in accordance with what is mandated under the Charter of the
Corporation.
WHEREFORE, foregoing premises considered, the Board decided as it hereby decides to DISMISS
the appeal of Atty. Ma Rosario Demigillo for lack of merit. 2
In the meanwhile, by letter dated April 14, 2003, President Valdes informed Demigillo of her poor
performance rating for the period from January 1, 2002 to December 31, 2002, to wit:
After a thorough evaluation/assessment of your job performance for the rating period January 1 to
December 21, 2002, it appears that your over-all performance is Poor.
Records show that you consistently behaved as an obstructionist in the implementation of the
Corporate Business Plan. You failed to demonstrate cooperation, respect and concern towards
authority and other members of the company. You also failed to abide by Civil Service and company
policies, rules and regulation. You miserably failed to adapt and respond to changes. You were very

resentful to new approaches as shown by your vehement objection to new improved policies and
programs. Instead of helping raise the morale of subordinate at high levels (sic) and promote career
and professional growth of subordinates, you tried to block such efforts towards this end.
In view of the foregoing and your failure to prove that you have effectively and efficiently performed
the duties, functions and responsibility (sic) of your position, I am constrained to give you a rating of
"Poor" for your 2002 performance.3
On April 28, 2003, Demigillo formally communicated to Atty. Florencio P. Gabriel Jr., Executive Vice
President of the Operations Group, appealing the "poor rating" given her by President Valdes.
In a memorandum dated May 6, 2003, Atty. Gabriel informed Demigillo that he could not act on her
appeal because of her "failure to state facts and arguments constituting the grounds for the appeal
and submit any evidence to support the same."4
On May 6, 2003, President Valdes issued a memorandum to Demigillo stating that he found no
justification to change the poor rating given to her for the year 2002.
On August 12, 2003, Demigillo received a memorandum from President Valdes stating that her
performance rating for the period from January 1, 2003 to June 2003 "needs improvement,"
attaching the pertinent Performance Evaluation Report Form that she was instructed to return "within
24 hours from receipt."5
Not in conformity with the performance rating, Demigillo scribbled on the right corner of the
memorandum the following comments: "I do not agree and accept. I am questioning the same. This
is pure harassment."
She then appealed the poor performance rating on August 14, 2003, calling the rating a part of
Valdes "unremitting harassment and oppression on her."6
On August 19, 2003, Demigillo reported for work upon the expiration of the 90-day preventive
suspension imposed by the Board of Directors in a separate administrative case for grave
misconduct, conduct prejudicial to the best interest of the service, insubordination and gross
discourtesy. In her memorandum of that date, she informed Atty. Gabriel Jr. of her readiness to
resume her duties and responsibilities, but requested to be allowed to reproduce documents in
connection with the appeal of her performance rating. She further requested that the relevant
grievance process should commence.
It appears that the Board of Directors rendered Decision No. 03-003 dated August 15, 2003
unanimously dropping Demigillo from the rolls.7 Demigillo received the copy of Decision No. 03-003
on August 25, 2003.
Decision of the CSC
On October 14, 2004, the CSC ruled through Resolution No. 0410928 that the 2002 Organizational
Refinements or Restructuring Plan of TIDCORP had been valid for being authorized by Republic Act.
No. 6656; that Section 7 of Republic Act No. 8498 granted a continuing power to TIDCORPs Board
of Directors to prescribe the agencys organizational structure, staffing pattern and compensation

packages; and that such grant continued until declared invalid by a court of competent jurisdiction or
revoked by Congress.
The CSC held, however, that TIDCORPs implementation of its reorganization did not comply with
Section 6 of Republic Act No. 6656;9 that although there was no diminution in Demigillos rank, salary
and status, there was nonetheless a demotion in her functions and authority, considering that the
2002 reorganization reduced her authority and functions from being the highest ranking legal officer
in charge of all the legal and corporate affairs of TIDCORP to being the head of the RCMSS
reporting to the Executive Vice President and having only two departments under her supervision;
and that the functions of Demigillos office were in fact transferred to the Operations Group.
The CSC further held that the dropping from the rolls of Demigillo did not comply with the mandatory
requirement under Section 2, particularly 2.2 Rule XII of the Revised Omnibus Rules on
Appointments and Other Personnel Actions Memorandum Circular No. 40, Series of 1998.
Subsequently, TIDCORP reinstated Demigillo to the position of Senior Vice President in RCMSS, a
position she accepted without prejudice to her right to appeal the decision of the CSC.
Ruling of the CA
Both Demigillo and TIDCORP appealed the decision of the CSC to the Court of Appeals (CA).
Demigillos appeal was docketed as CA-G.R. SP No. 87285. On the other hand, TIDCORPs appeal
was docketed as CA-G.R. SP No. 87295.
In CA-G.R. SP No. 87285, Demigillo partially assailed the CSCs decision, claiming that the CSC
erred: (1) in holding that Section 7 of Republic Act No. 8494 granted the Board of Directors of
TIDCORP a continuing power to reorganize; (2) in holding that the 2002 TIDCORP reorganization
had been authorized by law; and (3) in not holding that the 2002 TIDCORP reorganization was void
ab initio because it was not authorized by law and because the reorganization did not comply with
Republic Act No. 6656.10
In CA-G.R. SP No. 87295, TIDCORP contended that the CSC erred: (1) in ruling that Demigillo had
been demoted as a result of the 2002 TIDCORP reorganization; and (2) in ruling that TIDCORP had
failed to observe the provisions of Section 2, particularly 2.2 Rule XII of the Revised Omnibus Rules
on Appointments and Other Personnel Actions (Memorandum Circular No. 40, Series of 1998) on
dropping from the rolls, to the prejudice of Demigillos right to due process. 11
On June 27, 2005, the CAs Fourth Division promulgated its decision in CAG.R. SP No.
87285,12 which, albeit affirming the ruling of the CSC, rendered a legal basis different from that given
by the CSC, to wit:
In numerous cases citing Section 20 and Section 31, Book III of Executive Order No. 292, otherwise
known as the Administrative Code of 1987, the Supreme Court ruled in the affirmative that the
President of the Philippines has the continuing authority to reorganize the administrative structure of
the Office of the President.
Hence, being the alter ego of the President of the Philippines, the Board of Directors of the private
respondent-appellee is authorized by law to have a continuous power to reorganize its agency.13

Anent Demigillos contention that the 2002 reorganization effected was invalid, the CA ruled:
x x x. In this jurisdiction, reorganizations have been regarded as valid provided they are pursued in
good faith. Reorganization is carried out in good faith if it is for the purpose of economy or to make
bureaucracy more efficient.
In the case at bench, it is our considered opinion that except for her allegations, the petitionerappellant (Demigillo) failed to present sufficient evidence that the reorganization effected in 2002 did
not bear the earmarks of economy and efficiency. Good faith is always presumed. 14
The CA held that Demigillo could not be reinstated to her previous position of Senior Vice President
of the LCSD in view of the legality of the 2002 reorganization being upheld. 15
With respect to CA-G.R. SP No. 87295, the CAs Special Former Thirteenth Division promulgated a
decision on November 28, 2008,16 denying TIDCORPs appeal, and holding that Demigillo had been
demoted and invalidly dropped from the rolls by TIDCORP, explaining:
We do not need to stretch Our imagination that respondent Demigillo, one of the highest ranking
officers of the corporation, was indeed demoted when she was designated to be the head of merely
one sector. She may have retained her title as SVP, but she was deprived of the authority she
previously enjoyed and stripped of the duties and responsibilities assigned to her under the Legal
and Corporate Services. In utter disregard of respondent Demigillos right to security of tenure,
petitioner TIDCORP demoted her in the guise of "reorganization."
xxxx
Next, petitioner TIDCORP asserts that respondent Demigillo was legally dropped from the rolls. This
is a delirious supposition which does not deserve merit at all.
xxxx
Petitioner TIDCORP did not bother to adduce proof that it complied with the rudiments of due
process before dropping Demigillo from the rolls. She was not given the chance to present evidence
refuting the contentious ratings as her employer refused to discuss how it arrived at such
assessment. Her unceremonious dismissal was made even more apparent as she was never
advised of the possibility that she may be separated from service if her rating would not improve for
the next evaluation period.17
Issues
Demigillo filed before this Court a petition for review on certiorari assailing the CA decision in CAG.R. SP No. 87285 (G.R. No. 168613), asserting that the CA gravely erred: (1) in holding that the
Board of Directors of TIDCORP was an alter ego of the President who had the continuing authority
to reorganize TIDCORP; and (2) in holding that the reorganization of TIDCORP effected in 2002 was
valid considering her alleged failure to present evidence sufficiently showing that the reorganization
did not bear the earmarks of economy and efficiency.18Corollarily, she sought her reinstatement to a
position comparable to her former position as Senior Vice President in the LCSD. 19

Likewise, TIDCORP appealed through a petition for review on certiorari, praying for the reversal of
the decision promulgated in CA-G.R. SP No. 87295 (G.R. No. 185571), contending that the CA
erred: (1) in ruling that Demigillo had been demoted as a result of the TIDCORP 2002
reorganization; and (2) in ruling that Demigillo had not been legally dropped from the rolls. 20
On March 8, 2011, the Court En Banc consolidated G.R. No. 168613 and G.R. No. 185571. 21
Ruling of the Court
We deny the petition for review of Demigillo (G.R. No. 168613) for its lack of merit, but grant the
petition for review of TIDCORP (G.R. No. 185571).
G.R. No. 168613
In its comment in G.R. No. 168613,22 TIDCORP argues for the application of the doctrine of qualified
political agency, contending that the acts of the Board of Directors of TIDCORP, an attached agency
of the Department of Finance whose head, the Secretary of Finance, was an alter ego of the
President, were also the acts of the President.
TIDCORPs argument is unfounded.
The doctrine of qualified political agency, also known as the alter ego doctrine, was introduced in the
landmark case of Villena v. The Secretary of Interior.23 In said case, the Department of Justice, upon
the request of the Secretary of Interior, investigated Makati Mayor Jose D. Villena and found him
guilty of bribery, extortion, and abuse of authority. The Secretary of Interior then recommended to the
President the suspension from office of Mayor Villena. Upon approval by the President of the
recommendation, the Secretary of Interior suspended Mayor Villena. Unyielding, Mayor Villena
challenged his suspension, asserting that the Secretary of Interior had no authority to suspend him
from office because there was no specific law granting such power to the Secretary of Interior; and
that it was the President alone who was empowered to suspend local government officials. The
Court disagreed with Mayor Villena and upheld his suspension, holding that the doctrine of qualified
political agency warranted the suspension by the Secretary of Interior. Justice Laurel, writing for the
Court, opined:
After serious reflection, we have decided to sustain the contention of the government in this case on
the broad proposition, albeit not suggested, that under the presidential type of government which we
have adopted and considering the departmental organization established and continued in force by
paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or the law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of the secretaries
of such departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.
(Runkle vs. United States [1887], 122 U. S., 543; 30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141; see also
U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., 202; 34
Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey vs. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915;
Wilcox vs. Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.)

Fear is expressed by more than one member of this court that the acceptance of the principle of
qualified political agency in this and similar cases would result in the assumption of responsibility by
the President of the Philippines for acts of any member of his cabinet, however illegal, irregular or
improper may be these acts. The implications, it is said, are serious. Fear, however, is no valid
argument against the system once adopted, established and operated. Familiarity with the essential
background of the type of Government established under our Constitution, in the light of certain wellknown principles and practices that go with the system, should offer the necessary explanation. With
reference to the Executive Department of the government, there is one purpose which is crystalclear and is readily visible without the projection of judicial searchlight, and that is the establishment
of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the
Executive Department, begins with the enunciation of the principle that "The executive power shall
be vested in a President of the Philippines." This means that the President of the Philippines is the
Executive of the Government of the Philippines, and no other. 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 Presidents bosom confidence" (7 Writings, Ford ed., 498),
and in the language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the
direction of the President." Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in the matters of that
department where the President is required by law to exercise authority." (Myers vs. United States,
47 Sup. Ct. Rep., 21 at 30; 272 U.S. 52 at 133; 71 Law. Ed., 160). x x x.
The doctrine of qualified political agency essentially postulates that the heads of the various
executive departments are the alter egos of the President, and, thus, the actions taken by such
heads in the performance of their official duties are deemed the acts of the President unless the
President himself should disapprove such acts. This doctrine is in recognition of the fact that in our
presidential form of government, all executive organizations are adjuncts of a single Chief Executive;
that the heads of the Executive Departments are assistants and agents of the Chief Executive; and
that the multiple executive functions of the President as the Chief Executive are performed through
the Executive Departments. The doctrine has been adopted here out of practical necessity,
considering that the President cannot be expected to personally perform the multifarious functions of
the executive office.
But the doctrine of qualified political agency could not be extended to the acts of the Board of
Directors of TIDCORP despite some of its members being themselves the appointees of the
President to the Cabinet. Under Section 10 of Presidential Decree No. 1080, as further amended by
Section 6 of Republic Act No. 8494,24 the five ex officio members were the Secretary of Finance, the
Secretary of Trade and Industry, the Governor of the Bangko Sentral ng Pilipinas, the DirectorGeneral of the National Economic and Development Authority, and the Chairman of the Philippine
Overseas Construction Board, while the four other members of the Board were the three from the
private sector (at least one of whom should come from the export community), who were elected by
the ex officio members of the Board for a term of not more than two consecutive years, and the
President of TIDCORP who was concurrently the Vice-Chairman of the Board. Such Cabinet
members sat on the Board of Directors of TIDCORP ex officio, or by reason of their office or function,
not because of their direct appointment to the Board by the President. Evidently, it was the law, not
the President, that sat them in the Board.

Under the circumstances, when the members of the Board of Directors effected the assailed 2002
reorganization, they were acting as the responsible members of the Board of Directors of TIDCORP
constituted pursuant to Presidential Decree No. 1080, as amended by Republic Act No. 8494, not as
the alter egos of the President. We cannot stretch the application of a doctrine that already
delegates an enormous amount of power. Also, it is settled that the delegation of power is not to be
lightly inferred.25
Nonetheless, we uphold the 2002 reorganization and declare it valid for being done in accordance
with the exclusive and final authority expressly granted under Republic Act No. 8494, further
amending Presidential Decree No. 1080, the law creating TIDCORP itself, to wit:
Section 7. The Board of Directors shall provide for an organizational structure and staffing pattern for
officers and employees of the Trade and Investment Development Corporation of the Philippines
(TIDCORP) and upon recommendation of its President, appoint and fix their remuneration,
emoluments and fringe benefits: Provided, That the Board shall have exclusive and final authority to
appoint, promote, transfer, assign and re-assign personnel of the TIDCORP, any provision of existing
law to the contrary notwithstanding.
In this connection, too, we reiterate that we cannot disturb but must respect the ruling of the CSC
that deals with specific cases coming within its area of technical knowledge and expertise, 26 absent a
clear showing of grave abuse of discretion on its part. That clear showing was not made herein.
Such deference proceeds from our recognition of the important role of the CSC as the central
personnel agency of the Government having the familiarity with and expertise on the matters relating
to the career service.
Worthy to stress, lastly, is that the reorganization was not arbitrary and whimsical. It had been
formulated following lengthy consultations and close coordination with the affected offices within
TIDCORP in order for them to come up with various functional statements relating to the new
organizational setup. In fact, the Board of Directors decided on the need to reorganize in 2002 to
achieve several worthy objectives, as follows:
(1) To make the organization more viable in terms of economy, efficiency, effectiveness and
make it more responsive to the needs of its clientles by eliminating or minimizing any
overlaps and duplication of powers and functions;
(2) To come up with an organizational structure which is geared towards the strengthening of
the Corporation's overall financial and business operations through resource allocation shift;
and
(3) To rationalize corporate operations to maximize resources and achieve optimum
sustainable corporate performance vis-a-vis revised corporate policies, objectives and
directions by focusing the Corporation's efforts and resources to its vital and core functions. 27
The result of the lengthy consultations and close coordination was the comprehensive reorganization
plan that included a new organizational structure, position classification and staffing pattern,
qualification standards, rules and regulations to implement the reorganization, separation incentive
packages and timetable of implementation. Undoubtedly, TIDCORP effected the reorganization
within legal bounds and in response to the perceived need to make the agency more attuned to the
changing times.

Having found the 2002 reorganization to be valid and made pursuant to Republic Act No. 8494, we
declare that there are no legal and practical bases for reinstating Demigillo to her former position as
Senior Vice President in the LCSD. To be sure, the reorganization plan abolished the LCSD, and put
in place a set-up completely different from the previous one, including a new staffing pattern in which
Demigillo would be heading the RCMSS, still as a Senior Vice President of TIDCORP. With that
abolition, reinstating her as Senior Vice President in the LCSD became legally and physically
impossible.
Demigillos contention that she was specifically appointed to the position of Senior Vice President in
the LCSD was bereft of factual basis. The records indicate that her permanent appointment
pertained only to the position of Senior Vice President.28 Her appointment did not indicate at all that
she was to hold that specific post in the LCSD. Hence, her re-assignment to the RCMSS was by no
means a diminution in rank and status considering that she maintained the same rank of Senior Vice
President with an accompanying increase in pay grade.
The assignment to the RCMSS did not also violate Demigillos security of tenure as protected by
Republic Act No. 6656. We have already upheld reassignments In the Civil Service resulting from
valid reorganizations.29 Nor could she claim that her reassignment was invalid because it caused the
reduction in her rank, status or salary. On the contrary, she was reappointed as Senior Vice
President, a position that was even upgraded like all the other similar positions to Pay Grade 16,
Step 4, Level II.30 In every sense, the position to which she was reappointed under the 2002
reorganization was comparable with, if not similar to her previous position.
That the RCMSS was a unit smaller than the LCSD did not necessarily result in or cause a demotion
for Demigillo. Her new position was but the consequence of the valid reorganization, the authority to
implement which was vested in the Board of Directors by Republic Act No. 8494. Indeed, we do not
consider to be a violation of the civil servants right to security of tenure the exercise by the agency
where she works of the essential prerogative to change the work assignment or to transfer the civil
servant to an assignment where she would be most useful and effective. More succinctly put, that
prerogative inheres with the employer,31 whether public or private.
G.R. No. 185571
As earlier stated, TIDCORPs petition for review in G.R. No. 185571 is meritorious.
Anent the first issue in G.R. No. 185571, we have already explained that Demigillo was not demoted
because she did not suffer any diminution in her rank, status and salary under the reorganization.
Her reassignment to the RCMSS, a smaller unit compared to the LCSD, maintained for her the same
rank of Senior Vice-President with a corresponding increase in pay grade. The reassignment
resulted from the valid reorganization.
With respect to the second issue, Demigillo was validly dropped from the rolls by TIDCORP as the
consequence of the application of the rules governing her employment. Section 2 (2.2), Rule XII of
the Revised Omnibus Rules on Appointments and Other Personnel Actions (Memorandum Circular
No. 40, Series of 1998) provides:
xxxx
2.2 Unsatisfactory or Poor Performance

a. An official or employee who is given two (2) consecutive unsatisfactory ratings may be
dropped from the rolls after due notice. Notice shall mean that the officer or employee
concerned is informed in writing of his unsatisfactory performance for a semester and is
sufficiently warned that a succeeding unsatisfactory performance shall warrant his separation
from the service. Such notice shall be given not later than 30 days from the end of the
semester and shall contain sufficient information which shall enable the employee to prepare
an explanation.
b. An official or employee, who for one evaluation period is rated poor in performance, may
be dropped from the rolls after due notice. Notice shall mean that the officer or employee is
informed in writing of the status of his performance not later than the 4th month of that rating
period with sufficient warning that failure to improve his performance within the remaining
period of the semester shall warrant his separation from the service. Such notice shall also
contain sufficient information which shall enable the employee to prepare an explanation.
Under Section (b), supra, an official or employee may be dropped from the rolls provided the
following requisites are present, namely: (1) the official or employee was rated poor in performance
for one evaluation period; (2) the official or employee was notified in writing of the status of her
performance not later than the 4th month of the rating period with sufficient warning that failure to
improve her performance within the remaining period of the semester shall warrant her separation
from the service; and (3) such notice contained adequate information that would enable her to
prepare an explanation.
All of the requisites were duly established herein.
As to the first requisite, there is no dispute that President Valdes gave Demigillo a poor performance
rating for the annual rating period from January 1, 2002 to December 31, 2002.
The second requisite speaks of a sixth-month or per semester rating period. Although Demigillos
poor rating was made on an annual basis, that was allowed by the implementing rules of Executive
Order No. 292.32 Regarding the need to give her the written notice of her performance status not
later than the 4th month of the rating period, or at the half of the semester, the requirement did not
apply here because her rating was made on an annual basis. By analogy, however, the written
notice for an annual rating period could be sent on the 6th month or in the middle of the year.
Nevertheless, this was not expressly provided for in the Civil Service rules. In any case, it is
emphasized that the purpose of the written notice being sent to the affected officer or employee not
later than the 4th month of the rating period has been to give her the sufficient time to improve her
performance and thereby avert her separation from the service. That purpose is the very essence of
due process.
1wphi1

In Demigillos case, therefore, what was crucial was whether she had been allowed to enhance her
performance within a sufficient time from her receipt of the written notice of the poor performance
rating up to her receipt of the written notice of her dropping from the rolls. The records show that she
was, indeed, given enough time for her to show improvement. She received on April 21, 2003 a letter
from President Valdes that indicated her poor performance rating for the period of January 1, 2002 to
December 31, 2002.33 The Board of Directors issued on August 15, 2003 the decision dropping her
from rolls.34 She received a copy of the decision on August 25, 2003. 35 Thereby, she was given
almost four months to improve her performance before she was finally dropped from the rolls.

The second requisite further mentions that the written notice must contain sufficient warning that
failure to improve her performance within the remaining period of the semester shall warrant
separation from the service. Although the letter informing Demigillo of her poor performance rating
did not expressly state such a warning to her, it stated her gross failures in the performance of her
duties.36 The Performance Evaluation Report Form corresponding to her, which was attached to the
memorandum given to her, reflected her poor performance.36She was notified in writing of the denial
of her appeal of the poor rating.37 It cannot be denied that the letter of poor rating, the Performance
Evaluation Repmi Form, and the denial of her appeal all signified to her that she could be removed
from the service unless she would improve her performance. Thereby, she was given ample warning
to improve, or else be separated from the service. In that regard, she was certainly not a witless
person who could have missed the significance of such events. She was not only a lawyer. 38 She
was also a mid-level ranking government official who had been in the government corporate sector
for almost 20 years.39 Her familiarity with the dire consequences of a failure to improve a poor rating
under Civil Service rules was justifiably assumed.
Anent the third requisite, the letter of President Valdes plainly stated the reasons for her poor rating.
Her Performance Evaluation Repmi Form, which was attached to the letter, enumerated several
criteria used in measuring her management skills and the corresponding rating per criterion. The
letter even suggested that in order for her to enhance her performance she should undergo
extensive training on business management, a comprehensive lecture program on Civil Service
rules and regulations, and a training on effective public relations. The letter indicated that the
contents of the Performance Evaluation Report had been discussed with her. Moreover, Demigillo
formally appealed the poor performance rating, except that TIDCORP denied her appeal. 40All these
circumstances show that she was given more than enough information about the bases for her poor
performance rating, enabling her to appeal properly.
WHEREFORE, we DENY the petition for review on certiorari in G.R. No. 168613; AFFIRM the
decision promulgated on June 27, 2005 by the Court of Appeals in its CA-G.R. No. 87285; GRANT
the petition for review on certiorari in G.R. No. 185571; SET ASIDE the decision promulgated on
November 28, 2008 by the Court of Appeals in its CA-G.R. No. 87295; and ORDER Atty. MA.
ROSARIO MANALANG-DEMIGILLO to pay the costs of suit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 175368

April 11, 2013

LEAGUE OF PROVINCES OF THE PHILIPPINES, Petitioner,


vs.
DEPARTMENT OF ENVIRONMENT and NATURAL RESOURCES and HON. ANGELO T. REYES,
in his capacity as Secretary of DENR, Respondents.
DECISION

PERALTA, J.:
This is a petition for certiorari, prohibition and mandamus,1 praying that this Court order the following:
( 1) declare as unconstitutional Section 17(b)(3)(iii) of Republic Act (R.A.) No. 7160, otherwise
known as The Local Government Code of 1991 and Section 24 of Republic Act (R.A.) No. 7076,
otherwise known as the People's Small-Scale Mining Act of 1991; (2) prohibit and bar respondents
from exercising control over provinces; and (3) declare as illegal the respondent Secretary of the
Department of Energy and Natural Resources' (DENR) nullification, voiding and cancellation of the
Small-Scale Mining permits issued by the Provincial Governor of Bulacan.
The Facts are as follows:
On March 28, 1996, Golden Falcon Mineral Exploration Corporation (Golden Falcon) filed with the
DENR Mines and Geosciences Bureau Regional Office No. III (MGB R-III) an Application for
Financial and Technical Assistance Agreement (FTAA) covering an area of 61,136 hectares situated
in the Municipalities of San Miguel, San Ildefonso, Norzagaray and San Jose del Monte, Bulacan. 2
On April 29, 1998, the MGB R-III issued an Order denying Golden Falcon's Application for Financial
and Technical Assistance Agreement for failure to secure area clearances from the Forest
Management Sector and Lands Management Sector of the DENR Regional Office No. III. 3
On November 11, 1998, Golden Falcon filed an appeal with the DENR Mines and Geosciences
Bureau Central Office (MGB-Central Office), and sought reconsideration of the Order dated April 29,
1998.4
On February 10, 2004, while Golden Falcon's appeal was pending, Eduardo D. Mercado, Benedicto
S. Cruz, Gerardo R. Cruz and Liberato Sembrano filed with the Provincial Environment and Natural
Resources Office (PENRO) of Bulacan their respective Applications for Quarry Permit (AQP), which
covered the same area subject of Golden Falcon's Application for Financial and Technical Assistance
Agreement.5
On July 16, 2004, the MGB-Central Office issued an Order denying Golden Falcon's appeal and
affirming the MGB R-III's Order dated April 29, 1998.
On September 13, 2004, Atlantic Mines and Trading Corporation (AMTC) filed with the PENRO of
Bulacan an Application for Exploration Permit (AEP) covering 5,281 hectares of the area covered by
Golden Falcon's Application for Financial and Technical Assistance Agreement.6
On October 19, 2004, DENR-MGB Director Horacio C. Ramos, in response to MGB R-III Director
Arnulfo V. Cabantog's memorandum query dated September 8, 2004, categorically stated that the
MGB-Central Office's Order dated July 16, 2004 became final on August 11, 2004, fifteen (15) days
after Golden Falcon received the said Order, per the Certification dated October 8, 2004 issued by
the Postmaster II of the Philippine Postal Corporation of Cainta, Rizal. 7
Through letters dated May 5 and May 10, 2005, AMTC notified the PENRO of Bulacan and the MGB
R-III Director, respectively, that the subject Applications for Quarry Permit fell within its (AMTC's)
existing valid and prior Application for Exploration Permit, and the the former area of Golden Falcon
was open to mining location only on August 11, 2004 per the Memorandum dated October 19, 2004
of the MGB Director, Central Office.8

On June 24, 2005, Ricardo Medina, Jr., PENRO of Bulacan, indorsed AMTC's letter to the Provincial
Legal Officer, Atty. Eugenio F. Resurreccion, for his legal opinion on which date of denial of Golden
Falcon's application/appeal April 29, 1998 or July 16, 2004 is to be considered in the deliberation
of the Provincial Mining Regulatory Board (PMRB) for the purpose of determining when the land
subject of the Applications for Quarry Permit could be considered open for application.
On June 28, 2005, Provincial Legal Officer Eugenio Resurreccion issued a legal opinion stating that
the Order dated July 16, 2004 of the MGB-Central Office was a mere reaffirmation of the Order
dated April 29, 1998 of the MGB R-III; hence, the Order dated April 29, 1998 should be the reckoning
period of the denial of the application of Golden Falcon.
On July 22, 2005, AMTC filed with the PMRB of Bulacan a formal protest against the aforesaid
Applications for Quarry Permit on the ground that the subject area was already covered by its
Application for Exploration Permit.9
On August 8, 2005, MGB R-III Director Cabantog, who was the concurrent Chairman of the PMRB,
endorsed to the Provincial Governor of Bulacan, Governor Josefina M. dela Cruz, the aforesaid
Applications for Quarry Permit that had apparently been converted to Applications for Small-Scale
Mining Permit of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez
(formerly Liberato Sembrano).10
On August 9, 2005, the PENRO of Bulacan issued four memoranda recommending to Governor
Dela Cruz the approval of the aforesaid Applications for Small-Scale Mining Permit. 11
On August 10, 2005, Governor Dela Cruz issued the corresponding Small-Scale Mining Permits in
favor of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez. 12
Subsequently, AMTC appealed to respondent DENR Secretary the grant of the aforesaid SmallScale Mining Permits, arguing that: (1) The PMRB of Bulacan erred in giving due course to the
Applications for Small-Scale Mining Permit without first resolving its formal protest; (2) The areas
covered by the Small-Scale Mining Permits fall within the area covered by AMTC's valid prior
Application for Exploration Permit; (3) The Applications for Quarry Permit were illegally converted to
Applications for Small-Scale Mining Permit; (4) DENR-MGB Director Horacio C. Ramos' ruling that
the subject areas became open for mining location only on August 11, 2004 was controlling; (5) The
Small-Scale Mining Permits were null and void because they covered areas that were never
declared People's Small-Scale Mining Program sites as mandated by Section 4 of the People's
Small-Scale Mining Act of 1991; and (6) Iron ore is not considered as one of the quarry resources,
as defined by Section 43 of the Philippine Mining Act of 1995, which could be subjects of an
Application for Quarry Permit.13
On August 8, 2006, respondent DENR Secretary rendered a Decision 14 in favor of AMTC. The DENR
Secretary agreed with MGB Director Horacio C. Ramos that the area was open to mining location
only on August 11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a
copy of the MGB-Central Office's Order dated July 16, 2004, which Order denied Golden Falcon's
appeal. According to the DENR Secretary, the filing by Golden Falcon of the letter-appeal suspended
the finality of the Order of denial issued on April 29, 1998 by the Regional Director until the resolution
of the appeal on July 16, 2004 by the MGB-Central Office. He stated that the Applications for Quarry
Permit were filed on February 10, 2004 when the area was still closed to mining location; hence, the
Small-Scale Mining Permits granted by the PMRB and the Governor were null and void. On the

other hand, the DENR Secretary declared that AMTC filed its Application for Exploration Permit
when the area was already open to other mining applicants; thus, AMTCs Application for Exploration
Permit was valid. Moreover, the DENR Secretary held that the questioned Small-Scale Mining
Permits were issued in violation of Section 4 of R.A. No. 7076 and beyond the authority of the
Provincial Governor pursuant to Section 43 of R.A. No. 7942, because the area was never
proclaimed to be under the People's Small-Scale Mining Program. Further, the DENR Secretary
stated that iron ore mineral is not considered among the quarry resources.
The dispositive portion of the DENR Secretarys Decision reads:
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading
Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMPB-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto
S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the
said permits are hereby CANCELLED.15
Hence, petitioner League of Provinces filed this petition.
Petitioner is a duly organized league of local governments incorporated under R.A. No. 7160.
Petitioner declares that it is composed of 81 provincial governments, including the Province of
Bulacan. It states that this is not an action of one province alone, but the collective action of all
provinces through the League, as a favorable ruling will not only benefit one province, but all
provinces and all local governments.
Petitioner raises these issues:
I
WHETHER OR NOT SECTION 17(B)(3)(III) OF THE, 1991 LOCAL GOVERNMENT CODE AND
SECTION 24 OF THE PEOPLE'S SMALL-SCALE MINING ACT OF 1991 ARE
UNCONSTITUTIONAL FOR PROVIDING FOR EXECUTIVE CONTROL AND INFRINGING UPON
THE LOCAL AUTONOMY OF PROVINCES.
II
WHETHER OR NOT THE ACT OF RESPONDENT [DENR] IN NULLIFYING, VOIDING AND
CANCELLING THE SMALL-SCALE MINING PERMITS AMOUNTS TO EXECUTIVE CONTROL,
NOT MERELY SUPERVISION AND USURPS THE DEVOLVED POWERS OF ALL PROVINCES.16
To start, the Court finds that petitioner has legal standing to file this petition because it is tasked
under Section 504 of the Local Government Code of 1991 to promote local autonomy at the
provincial level;17 adopt measures for the promotion of the welfare of all provinces and its officials
and employees;18 and exercise such other powers and perform such other duties and functions as
the league may prescribe for the welfare of the provinces.19
Before this Court determines the validity of an act of a co-equal and coordinate branch of the
Government, it bears emphasis that ingrained in our jurisprudence is the time-honored principle that
a statute is presumed to be valid.20 This presumption is rooted in the doctrine of separation of powers

which enjoins upon the three coordinate departments of the Government a becoming courtesy for
each other's acts.21 This Court, however, may declare a law, or portions thereof, unconstitutional
where a petitioner has shown a clear and unequivocal breach of the Constitution, 22 leaving no doubt
or hesitation in the mind of the Court.23
In this case, petitioner admits that respondent DENR Secretary had the authority to nullify the SmallScale Mining Permits issued by the Provincial Governor of Bulacan, as the DENR Secretary has
control over the PMRB, and the implementation of the Small-Scale Mining Program is subject to
control by respondent DENR.
Control of the DENR/DENR Secretary over small-scale mining in the provinces is granted by three
statutes: (1) R.A. No. 7061 or The Local Government Code of 1991; (2) R.A. No. 7076 or the
People's Small Scale Mining Act of 1991; and (3) R.A. No. 7942, otherwise known as the Philippine
Mining Act of 1995.24 The pertinent provisions of law sought to be declared as unconstitutional by
petitioner are as follows:
R.A. No. 7061 (The Local Government Code of 1991)
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant
and shall continue exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of national agencies and
offices devolved to them pursuant to this Code. Local government units shall likewise exercise such
other powers and discharge such other functions and responsibilities as are necessary, appropriate,
or incidental to efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
xxxx
(3) For a Province:c
xxxx
(iii) Pursuant to national policies and subject to supervision, control and review of the DENR,
enforcement of forestry laws limited to community-based forestry projects, pollution control law,
small-scale mining law, and other laws on the protection of the environment; and mini-hydro electric
projects for local purposes; x x x25
R.A. No. 7076 (People's Small-Scale Mining Act of 1991)
Sec. 24. Provincial/City Mining Regulatory Board. - There is hereby created under the direct
supervision and control of the Secretary a provincial/city mining regulatory board, herein called the
Board, which shall be the implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;

(c) Award contracts to small-scale miners;


(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a peoples small-scale
mining area, an area that is declared a small-mining; and
(f) Perform such other functions as may be necessary to achieve the goals and objectives of
this Act.26
Petitioner contends that the aforecited laws and DENR Administrative Order No. 9640 (the
Implementing Rules and Regulations of the Philippine Mining Act of 1995) did not explicitly confer
upon respondents DENR and the DENR Secretary the power to reverse, abrogate, nullify, void, or
cancel the permits issued by the Provincial Governor or small-scale mining contracts entered into by
the PMRB. The statutes are also silent as to the power of respondent DENR Secretary to substitute
his own judgment over that of the Provincial Governor and the PMRB.
Moreover, petitioner contends that Section 17 (b)(3)(iii) of the Local Government Code of 1991 and
Section 24 of R.A. No. 7076, which confer upon respondents DENR and the DENR Secretary the
power of control are unconstitutional, as the Constitution states that the President (and Executive
Departments and her alter-egos) has the power of supervision only, not control, over acts of the local
government units, and grants the local government units autonomy, thus:
The 1987 Constitution:
Article X, Section 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays, shall ensure that the acts of their component
units are within the scope of their prescribed powers and functions.27
Petitioner contends that the policy in the above-cited constitutional provision is mirrored in the Local
Government Code, which states:
SEC. 25. National Supervision over Local Government Units. - (a) Consistent with the basic policy
on local autonomy, the President shall exercise general supervision over local government units to
ensure that their acts are within the scope of their prescribed powers and functions.
The President shall exercise supervisory authority directly over provinces, highly urbanized cities,
and independent component cities; through the province with respect to component cities and
municipalities; and through the city and municipality with respect to barangays. 28
Petitioner contends that the foregoing provisions of the Constitution and the Local Government Code
of 1991 show that the relationship between the President and the Provinces or respondent DENR,
as the alter ego of the President, and the Province of Bulacan is one of executive supervision, not
one of executive control. The term "control" has been defined as the power of an officer to alter or
modify or set aside what a subordinate officer had done in the performance of his/her duties and to
substitute the judgment of the former for the latter, while the term "supervision" is the power of a
superior officer to see to it that lower officers perform their function in accordance with law.29

Petitioner argues that respondent DENR Secretary went beyond mere executive supervision and
exercised control when he nullified the small-scale mining permits granted by the Provincial
Governor of Bulacan, as the former substituted the judgment of the latter.
Petitioner asserts that what is involved here is a devolved power.
Under the Local Government Code of 1991, the power to regulate small-scale mining has been
devolved to all provinces. In the exercise of devolved powers, departmental approval is not
necessary.30
Petitioner contends that if the provisions in Section 24 of R.A. No. 7076 and Section 17 (b)(3)(iii) of
the Local Government Code of 1991 granting the power of control to the DENR/DENR Secretary are
not nullified, nothing would stop the DENR Secretary from nullifying, voiding and canceling the smallscale mining permits that have been issued by a Provincial Governor.
Petitioner submits that the statutory grant of power of control to respondents is unconstitutional, as
the Constitution only allows supervision over local governments and proscribes control by the
executive departments.
In its Comment, respondents, represented by the Office of the Solicitor General, stated that contrary
to the assertion of petitioner, the power to implement the small-scale mining law is expressly limited
in Section 17 (b)(3)(iii) of the Local Government Code, which provides that it must be carried out
"pursuant to national policies and subject to supervision, control and review of the DENR." Moreover,
the fact that the power to implement the small-scale mining law has not been fully devolved to
provinces is further amplified by Section 4 of the People's Small-Scale Mining Act of 1991, which
provides, among others, that the People's Small-Scale Mining Program shall be implemented by the
DENR Secretary.
The petition lacks merit.
Paragraph 1 of Section 2, Article XII (National Economy and Patrimony) of the
Constitution31 provides that "the exploration, development and utilization of natural resources shall be
under the full control and supervision of the State."
Moreover, paragraph 3 of Section 2, Article XII of the Constitution provides that "the Congress may,
by law, allow small-scale utilization of natural resources by Filipino citizens x x x."
Pursuant to Section 2, Article XII of the Constitution, R.A. No. 7076 or the People's Small-Scale
Mining Act of 1991, was enacted, establishing under Section 4 thereof a People's Small-Scale
Mining Program to be implemented by the DENR Secretary in coordination with other concerned
government agencies.
The People's Small-Scale Mining Act of 1991 defines "small-scale mining" as "refer[ring] to mining
activities, which rely heavily on manual labor using simple implement and methods and do not use
explosives or heavy mining equipment."32
It should be pointed out that the Administrative Code of 198733 provides that the DENR is, subject to
law and higher authority, in charge of carrying out the State's constitutional mandate, under Section

2, Article XII of the Constitution, to control and supervise the exploration, development, utilization
and conservation of the country's natural resources. Hence, the enforcement of small-scale mining
law in the provinces is made subject to the supervision, control and review of the DENR under the
Local Government Code of 1991, while the Peoples Small-Scale Mining Act of 1991 provides that
the Peoples Small-Scale Mining Program is to be implemented by the DENR Secretary in
coordination with other concerned local government agencies.
Indeed, Section 4, Article X (Local Government) of the Constitution states that "[t]he President of the
Philippines shall exercise general supervision over local governments," and Section 25 of the Local
Government Code reiterates the same. General supervision by the President means no more than
seeing to it that laws are faithfully executed or that subordinate officers act within the law.34
The Court has clarified that the constitutional guarantee of local autonomy in the Constitution Art. X,
Sec. 2 refers to the administrative autonomy of local government units or, cast in more technical
language, the decentralization of government authority.35 It does not make local governments
sovereign within the State.36 Administrative autonomy may involve devolution of powers, but subject
to limitations like following national policies or standards,37 and those provided by the Local
Government Code, as the structuring of local governments and the allocation of powers,
responsibilities, and resources among the different local government units and local officials have
been placed by the Constitution in the hands of Congress 38 under Section 3, Article X of the
Constitution.
Section 3, Article X of the Constitution mandated Congress to "enact a local government code which
shall provide for a more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources, and provide
for the qualifications, election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and operation of the local
units."
In connection with the enforcement of the small-scale mining law in the province, Section 17 of the
Local Government Code provides:
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant
and shall continue exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of national agencies and
offices devolved to them pursuant to this Code. Local government units shall likewise exercise such
other powers and discharge such other functions and responsibilities as are necessary, appropriate,
or incidental to efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
xxxx
(3) For a Province:c
xxxx

(iii) Pursuant to national policies and subject to supervision, control and review of the DENR,
enforcement of forestry laws limited to community-based forestry projects, pollution control law,
small-scale mining law, and other laws on the protection of the environment; and mini-hydro electric
projects for local purposes;39
Clearly, the Local Government Code did not fully devolve the enforcement of the small-scale mining
law to the provincial government, as its enforcement is subject to the supervision, control and review
of the DENR, which is in charge, subject to law and higher authority, of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization of the
country's natural resources.40
Section 17 (b)(3)(iii) of the Local Government Code of 1991 is in harmony with R.A. No. 7076 or the
People's Small-Scale Mining Act of 1991,41 which established a People's Small-Scale Mining
Program to be implemented by the Secretary of the DENR, thus:
Sec. 2. Declaration of Policy. It is hereby declared of the State to promote, develop, protect and
rationalize viable small-scale mining activities in order to generate more employment opportunities
and provide an equitable sharing of the nation's wealth and natural resources, giving due regard to
existing rights as herein provided.
xxxx
Sec. 4. People's Small-Scale Mining Program. - For the purpose of carrying out the declared policy
provided in Section 2 hereof, there is hereby established a People's Small-Scale Mining Program to
be implemented by the Secretary of the Department of Environment and Natural Resources,
hereinafter called the Department, in coordination with other concerned government agencies,
designed to achieve an orderly, systematic and rational scheme for the small-scale development and
utilization of mineral resources in certain mineral areas in order to address the social, economic,
technical, and environmental problems connected with small-scale mining activities.
xxxx
Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created under the direct
supervision and control of the Secretary a provincial/city mining regulatory board, herein called the
Board, which shall be the implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a peoples small-scale
mining area, an area that is declared a small-mining; and

(f) Perform such other functions as may be necessary to achieve the goals and objectives of
this Act.42
DENR Administrative Order No. 34, series of 1992, containing the Rules and Regulations to
implement R.A. No. 7076, provides:
SEC. 21. Administrative Supervision over the People's Small-Scale Mining Program. The following
DENR officials shall exercise the following supervisory functions in the implementation of the
Program:
21.1 DENR Secretrary direct supervision and control over the program and activities of the
small-scale miners within the people's small-scale mining area;
21.2 Director the Director shall:
a. Recommend the depth or length of the tunnel or adit taking into account the: (1)
size of membership and capitalization of the cooperative; (2) size of mineralized
areas; (3) quantity of mineral deposits; (4) safety of miners; and (5) environmental
impact and other considerations;
b. Determine the right of small-scale miners to existing facilities in consultation with
the operator, claimowner, landowner or lessor of an affected area upon declaration of
a small-scale mining area;
c. Recommend to the Secretary the withdrawal of the status of the people's smallscale mining area when it can no longer be feasibly operated on a small-scale basis;
and
d. See to it that the small-scale mining contractors abide by small-scale mines safety
rules and regulations.
xxxx
SEC. 22. Provincial/City Mining Regulatory Board. The Provincial/City Mining Regulatory Board
created under R.A. 7076 shall exercise the following powers and functions, subject to review by the
Secretary:
22.1 Declares and segregates existing gold rush area for small-scale mining;
22.2 Reserves for the future, mineralized areas/mineral lands for people's small-scale
mining;
22.3 Awards contracts to small-scale miners cooperative;
22.4 Formulates and implements rules and regulations related to R.A. 7076;
22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days
upon filing of protests or complaints; Provided, That any aggrieved party may appeal within

five (5) days from the Board's decision to the Secretary for final resolution otherwise the
same is considered final and executory; and
22.6 Performs such other functions as may be necessary to achieve the goals and objectives
of R.A. 7076.
SEC. 6. Declaration of People's Small-Scale Mining Areas. The Board created under R.A. 7076
shall have the authority to declare and set aside People's Small-Scale Mining Areas in sites onshore
suitable for small-scale mining operations subject to review by the DENR Secretary thru the
Director.43
DENR Administrative Order No. 23, otherwise known as the Implementing Rules and Regulations of
R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995, adopted on August 15, 1995,
provides under Section 12344 thereof that small-scale mining applications should be filed with the
PMRB45 and the corresponding permits shall be issued by the Provincial Governor, except smallscale mining applications within the mineral reservations.
Thereafter, DENR Administrative Order No. 96-40, otherwise known as the Revised Implementing
Rules and Regulations of R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995,
adopted on December 19, 1996, provides that applications for Small-Scale Mining Permits shall be
filed with the Provincial Governor/City Mayor through the concerned Provincial/City Mining
Regulatory Board for areas outside the Mineral Reservations and with the Director though the
Bureau for areas within the Mineral Reservations.46 Moreover, it provides that Local Government
Units shall, in coordination with the Bureau/ Regional Offices and subject to valid and existing mining
rights, "approve applications for small-scale mining, sand and gravel, quarry x x x and gravel permits
not exceeding five (5) hectares."47
Petitioner contends that the Local Government Code of 1991, R.A. No. 7076, DENR Administrative
Orders Nos. 95-23 and 96-40 granted the DENR Secretary the broad statutory power of control, but
did not confer upon the respondents DENR and DENR Secretary the power to reverse, abrogate,
nullify, void, cancel the permits issued by the Provincial Governor or small-scale mining contracts
entered into by the Board.
The contention does not persuade.
The settlement of disputes over conflicting claims in small-scale mining is provided for in Section 24
of R.A. No. 7076, thus:
Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created under the direct
supervision and control of the Secretary a provincial/city mining regulatory board, herein called the
Board, which shall be the implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
xxxx
(e) Settle disputes, conflicts or litigations over conflicting claims within a people's small-scale mining
area, an area that is declared a small mining area; x x x

Section 24, paragraph (e) of R.A. No. 7076 cited above is reflected in Section 22, paragraph 22.5 of
the Implementing Rules and Regulations of R.A. No. 7076, to wit:
SEC. 22. Provincial/City Mining Regulatory Board. The Provincial/City Mining Regulatory Board
created under R.A. No. 7076 shall exercise the following powers and functions, subject to review by
the Secretary:
xxxx
22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days upon filing
of protests or complaints; Provided, That any aggrieved party may appeal within five (5) days from
the Board's decision to the Secretary for final resolution otherwise the same is considered final and
executory; x x x
In this case, in accordance with Section 22, paragraph 22.5 of the Implementing Rules and
Regulations of R.A. No. 7076, the AMTC filed on July 22, 2005 with the PMRB of Bulacan a formal
protest against the Applications for Quarry Permits of Eduardo Mercado, Benedicto Cruz, Liberato
Sembrano (replaced by Lucila Valdez) and Gerardo Cruz on the ground that the subject area was
already covered by its Application for Exploration Permit.48However, on August 8, 2005, the PMRB
issued Resolution Nos. 05-8, 05-9, 05-10 and 05-11, resolving to submit to the Provincial Governor
of Bulacan the Applications for Small-Scale Mining Permits of Eduardo Mercado, Benedicto Cruz,
Lucila Valdez and Gerardo Cruz for the granting/issuance of the said permits. 49 On August 10, 2005,
the Provincial Governor of Bulacan issued the Small-Scale Mining Permits to Eduardo Mercado,
Benedicto Cruz, Lucila Valdez and Gerardo Cruz based on the legal opinion of the Provincial Legal
Officer and the Resolutions of the PMRB of Bulacan.
Hence, AMTC filed an appeal with respondent DENR Secretary, appealing from Letter-Resolution
No. 05-1317 and Resolution Nos. 05-08, 05-09, 05-10 and 05-11, all dated August 8, 2005, of the
PMRB of Bulacan, which resolutions gave due course and granted, on August 10, 2005, Small-Scale
Mining Permits to Eduardo D. Mercado, Benedicto S. Cruz, Lucila Valdez and Gerardo Cruz
involving parcels of mineral land situated at Camachin, Doa Remedios Trinidad, Bulacan.
The PMRB of Bulacan filed its Answer, stating that it is an administrative body, created under R.A.
No. 7076, which cannot be equated with the court wherein a full-blown hearing could be conducted,
but it is enough that the parties were given the opportunity to present evidence. It asserted that the
questioned resolutions it issued were in accordance with the mining laws and that the Small-Scale
Mining Permits granted were registered ahead of AMTC's Application for Exploration Permit. Further,
the Board stated that the Governor of Bulacan had the power to approve the Small-Scale Mining
Permits under R.A. No. 7160.
The DENR Secretary found the appeal meritorious, and resolved these pivotal issues: (1) when is
the subject mining area open for mining location by other applicants; and (2) who among the
applicants have valid applications. The pertinent portion of the decision of the DENR Secretary
reads:
1wphi1

We agree with the ruling of the MGB Director that the area is open only to mining location on August
11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a copy of the
subject Order of July 16, 2004. The filing by Golden Falcon of the letter-appeal suspended the
1wphi1

finality of the Order of Denial issued on April 29, 1998 by the Regional Director until the Resolution
thereof on July 16, 2004.
Although the subject AQPs/SSMPs were processed in accordance with the procedures of the
PMRB, however, the AQPs were filed on February 10, 2004 when the area is still closed to mining
location. Consequently, the SSMPs granted by the PMRB and the Governor are null and void
making thereby AEP No. III-02-04 of the AMTC valid, it having been filed when the area is already
open to other mining applicants.
Records also show that the AQPs were converted into SSMPs. These are two (2) different
applications. The questioned SSMPs were issued in violation of Section 4 of RA 7076 and beyond
the authority of the Provincial Governor pursuant to Section 43 of RA 7942 because the area was
never proclaimed as "People's Small-Scale Mining Program." Moreover, iron ore mineral is not
considered among the quarry resources.
xxxx
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading
Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMPB-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto
S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the
said permits are hereby CANCELLED.50
The Court finds that the decision of the DENR Secretary was rendered in accordance with the power
of review granted to the DENR Secretary in the resolution of disputes, which is provided for in
Section 24 of R.A. No. 707651 and Section 22 of its Implementing Rules and Regulations. 52 It is
noted that although AMTC filed a protest with the PMRB regarding its superior and prior Application
for Exploration Permit over the Applications for Quarry Permit, which were converted to Small-Scale
Mining Permits, the PMRB did not resolve the same, but issued Resolution Nos. 05-08 to 05-11 on
August 8, 2005, resolving to submit to the Provincial Governor of Bulacan the Applications for SmallScale Mining Permits of Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz for the
granting of the said permits. After the Provincial Governor of Bulacan issued the Small-Scale Mining
Permits on August 10, 2005, AMTC appealed the Resolutions of the PMRB giving due course to the
granting of the Small-Scale Mining Permits by the Provincial Governor.
Hence, the decision of the DENR Secretary, declaring that the Application for Exploration Permit of
AMTC was valid and may be given due course, and canceling the Small-Scale Mining Permits
issued by the Provincial Governor, emanated from the power of review granted to the DENR
Secretary under R.A. No. 7076 and its Implementing Rules and Regulations. The DENR Secretary's
power to review and, therefore, decide, in this case, the issue on the validity of the issuance of the
Small-Scale Mining Permits by the Provincial Governor as recommended by the PMRB, is a quasijudicial function, which involves the determination of what the law is, and what the legal rights of the
contending parties are, with respect to the matter in controversy and, on the basis thereof and the
facts obtaining, the adjudication of their respective rights.53 The DENR Secretary exercises quasijudicial function under R.A. No. 7076 and its Implementing Rules and Regulations to the extent
necessary in settling disputes, conflicts or litigations over conflicting claims. This quasi-judicial
function of the DENR Secretary can neither be equated with "substitution of judgment" of the
Provincial Governor in issuing Small-Scale Mining Permits nor "control" over the said act of the

Provincial Governor as it is a determination of the rights of AMTC over conflicting claims based on
the law.
In determining whether Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24
of R.A. No. 7076 are unconstitutional, the Court has been guided by Beltran v. The Secretary of
Health, 54 which held:
The fundamental criterion is that all reasonable doubts should be resolved in favor of the
constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law
to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The
ground for nullity must be clear and beyond reasonable doubt. Those who petition this Court to
declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise,
the petition must fail. 55
In this case, the Court finds that the grounds raised by petitioner to challenge the constitutionality of
Section 17 (b )(3)(iii) of the Local Government Code of 1991 and Section 24 'of R.A. No.7076 failed
to overcome the constitutionality of the said provisions of law.
WHEREFORE, the petition is DISMISSED for lack of merit.
No costs.
SO ORDERED.

COMMANDER-IN-CHIEF AND MILITARY


POWERS

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. L-33964 December 11, 1971


IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG
RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.
G.R. No. L-33965 December 11, 1971
ROGELIO V. ARIENDA, petitioner,
vs.
SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. CONSTABULARY, respondents.
G.R. No. L-33973 December 11, 1971
LUZVIMINDA DAVID, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N. C.
CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON. JUAN PONCE
ENRILE in his capacity as Secretary, Department of National defense, respondents.
G.R. No. L-33982 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E. PRUDENTE
FELICIDAD G. PRUDENTE, petitioners,
vs.
GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents.
G.R. No. L-34004 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF GERARDO
TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF DOCUMENTS
ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as Chairman, Committee on Legal
Assistance, Philippine Bar Association,petitioner,
vs.

BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE CONSTABULARY, respondent.


G.R. No. L-34013 December 11, 1971
REYNALDO RIMANDO, petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary, respondent.
G.R. No. L-34039 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT.
FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS C.
RABAGO, in his capacity as President of the Conference Delegates Association of the
Philippines (CONDA),petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR.
ANTOLIN ORETA, JR., petitioner,
vs.
GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents.
G.R. No. L-34339 December 11, 1971
GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et
al., respondents.
Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.
Ramon A. Gonzales for petitioner Rogelio V. Arienda.
E. Voltaire Garcia II for petitioner Luzvimindo David.
Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E. Taada, Fortunato de Leon, R. G.
Suntay and Juan T. David for petitioner Felicidad G. Prudente.
Ruben L. Roxas for petitioner Reynaldo Rimando.

Nuez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc.
E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc., et al.
Jose W. Diokno and Juanito R. Remulla for petitioner Antolin Oreta, Jr.
Domingo E. de Lara for and in his own behalf.
Office of the Solicitor General Felix Q. Antonio and Assistant Solicitor General Bernardo P. Pardo for
respondents.

CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was
holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the
general elections scheduled for November 8, 1971, two (2) hand grenades were thrown, one after
the other, at the platform where said candidates and other persons were. As a consequence, eight
(8) persons were killed and many more injured, including practically all of the aforementioned
candidates, some of whom sustained extensive, as well as serious, injuries which could have been
fatal had it not been for the timely medical assistance given to them.
On August 23, soon after noontime, the President of the Philippines announced the issuance of
Proclamation No. 889, dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely established
that lawless elements in the country, which are moved by common or similar
ideological conviction, design and goal and enjoying the active moral and material
support of a foreign power and being guided and directed by a well trained,
determined and ruthless group of men and taking advantage of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and have in
fact joined and banded their forces together for the avowed purpose of actually
staging, undertaking and waging an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted
government, and supplant our existing political social, economic and legal order with
an entirely new one whose form of government, whose system of laws, whose
conception of God and religion, whose notion of individual rights and family relations,
and whose political, social and economic precepts are based on the Marxist-LeninistMaoist teachings and beliefs;
WHEREAS, these lawless elements, acting in concert through front organizations
that are seemingly innocent and harmless, have continuously and systematically
strengthened and broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our peasantry, laborers,
professionals, intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in infiltrating
almost every segment of our society in their ceaseless determination to erode and
weaken the political, social, economic and moral foundations of our existing
government and to influence many peasant, labor, professional, intellectual, student
and mass media organizations to commit acts of violence and depredations against

our duly constituted authorities, against the members of our law enforcement
agencies, and worst of all, against the peaceful members of our society;
WHEREAS, these lawless elements have created a state of lawlessness and
disorder affecting public safety and the security of the State, the latest manifestation
of which has been the dastardly attack on the Liberal Party rally in Manila on August
21, 1971, which has resulted in the death and serious injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be taken in
order to maintain peace and order, secure the safety of the people and preserve the
authority of the State;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of habeas corpus, for the
persons presently detained, as well as others who may be hereafter similarly
detained for the crimes of insurrection or rebellion, and all other crimes and offenses
committed by them in furtherance or on the occasion thereof, or incident thereto, or
in connection therewith.
Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by the following
persons, who, having been arrested without a warrant therefor and then detained, upon the authority
of said proclamation, assail its validity, as well as that of their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the petitioners in Case
No. L-33964 filed on August 24, 1971 who, on August 22, 1971, between 8 a.m. and 6 p.m.,
were "invited" by agents of the Philippine Constabulary which is under the command of
respondent Brig. Gen. Eduardo M. Garcia to go and did go to the headquarters of the Philippine
Constabulary, at Camp Crame, Quezon City, for interrogation, and thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 filed, also, on August 24, 1971
who was picked up in his residence, at No. 55 Road, 3, Urduja Village, Quezon City, by members of
the Metrocom and then detained;
3. Soon after the filing of the petition in Case No. L-33965 or on August 28, 1971 the same was
amended to include VICENTE ILAO and JUAN CARANDANG, as petitioners therein, although, apart
from stating that these additional petitioners are temporarily residing with the original petitioner,
Rogelio V. Arienda, the amended petition alleged nothing whatsoever as regards the circumstances
under which said Vicente Ilao and Juan Carandang are said to be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 filed on August 25, 1971 who was
similarly arrested in his residence, at No. 131-B Kamias Road, Quezon City, and detained by the
Constabulary;
5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 on August 27, 1971 upon
the ground that her father, Dr. NEMESIO E. PRUDENTE, had, on August 22, 1971, at about 8 p.m.,
been apprehended by Constabulary agents in his house, at St. Ignatius Village, Quezon City, and
then detained at the Camp Crame stockade, Quezon City;
6. ANGELO DE LOS REYES, who was allowed on August 30, 1971 to intervene as one of the
petitioners in Cases Nos. L-33964, L-33965 and L-33973, he having been arrested by members of

the Constabulary on August 22, 1971, between 6:30 and 7:30 p.m., in his residence, at 86 Don
Manuel Street, Sta. Mesa Heights, Quezon City, and brought to Camp Crame, Quezon City, where
he is detained and restrained of liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene as one of the petitioners in said three (3)
cases, upon the ground that, on August 23, 1971, at about 8 a.m., he was, likewise, apprehended at
Sta. Rosa, Laguna, by members of the Philippine Constabulary and brought, first to the
Constabulary headquarters at Canlubang, Laguna, and, then, to Camp Crame, Quezon City, where
he is detained and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners in the same
three (3) cases, he having been arrested in his residence, at 318 Lakandula St., Angeles City, on
August 22, 1971, between 6 and 7 p.m., and taken to the PC offices at Sto. Domingo, Angeles City,
then to Camp Olivas, San Fernando, Pampanga, and eventually to Camp Crame, Quezon City,
where he is restrained and deprived of liberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college students of St. Louis
University, Baguio City, on whose behalf, Domingo E. de Lara in his capacity as Chairman,
Committee on Legal Assistance, Philippine Bar Association filed on September 3, 1971, the
petition in Case No. L-34004, upon the ground that said Gerardo Tomas had, on August 23, 1971, at
about 6 a.m., been arrested by Constabulary agents, while on his way to school in the City of
Baguio, then brought to the Constabulary premises therein at Camp Holmes, and, thereafter, taken,
on August 24, 1971, to Camp Olivas, Pampanga, and thence, on August 25, 1971, to the
Constabulary headquarters at Camp Crame, Quezon City, where he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013 filed on September 7, 1971 a 19year old student of the U.P. College in Baguio city who, while allegedly on his way home, at
Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was joined by three (3) men who
brought him to the Burnham Park, thence, to Camp Olivas at San Fernando, Pampanga, and,
thereafter, to Camp Crame, Quezon City, where he is detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO, on whose
behalf Carlos C. Rabago as President of the Conference Delegates Association of the Philippines
(CONDA) filed the petition in Case No. L-34039 on September 14, 1971 against Gen.
Eduardo M. Garcia, alleging that, on August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested,
while at Liamzon Subdivision, Rosario, Pasig, Rizal, by agents of the Constabulary, and taken to the
PC headquarters at Camp Crame, where, later, that same afternoon, her husband was brought,
also, by PC agents and both are detained;
12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 on October 26, 1971
against said Gen. Garcia, as Chief of the Constabulary, and Col. Prospero Olivas, Chief of the
Central Intelligence Service (CIS), Philippine Constabulary, alleging that, upon invitation from said
CIS, he went, on October 20, 1971, to Camp Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief
of Staff of the Armed Forces of the Philippines, who referred petitioner to Col. Laroya of the CIS; that
the latter, in turn, referred him to CIS Investigator Atty. Berlin Castillo and another CIS against,
whose name is unknown to the petitioner; and that, after being interrogated by the two (2), petitioner
was detained illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 filed on November 10, 1971 who was
apprehended, by agents of the Constabulary, in the evening of November 8, 1941, in Quezon City,
and then detained at Camp Crame, in the same City.

Upon the filing of the aforementioned cases, the respondents were forthwith required to answer the
petitions therein, which they did. The return and answer in L-33964 which was, mutatis mutandis,
reproduced substantially or by reference in the other cases, except L-34265 alleges, inter alia,
that the petitioners had been apprehended and detained "on reasonable belief" that they had
"participated in the crime of insurrection or rebellion;" that "their continued detention is justified due
to the suspension of the privilege of the writ of habeas corpus pursuant to Proclamation No. 889 of
the President of the Philippines;" that there is "a state of insurrection or rebellion" in this country, and
that "public safety and the security of the State required the suspension of the privilege of the writ
of habeas corpus," as "declared by the President of the Philippines in Proclamation No. 889; that in
making said declaration, the "President of the Philippines acted on relevant facts gathered thru the
coordinated efforts of the various intelligence agents of our government but (of) which the Chief
Executive could not at the moment give a full account and disclosure without risking revelation of
highly classified state secrets vital to its safely and security"; that the determination thus made by the
President is "final and conclusive upon the court and upon all other persons" and "partake(s) of the
nature of political question(s) which cannot be the subject of judicial inquiry," pursuant to Barcelon v.
Baker, 5 Phil. 87, and Montenegro v. Castaeda, 91 Phil. 882; that petitioners "are under detention
pending investigation and evaluation of culpabilities on the reasonable belief" that they "have
committed, and are still committing, individually or in conspiracy with others, engaged in armed
struggle, insurgency and other subversive activities for the overthrow of the Government; that
petitioners cannot raise, in these proceedings for habeas corpus, "the question of their guilt or
innocence"; that the "Chief of Constabulary had petitioners taken into custody on the basis of the
existence of evidence sufficient to afford a reasonable ground to believe that petitioners come within
the coverage of persons to whom the privilege of the writ of habeas corpus has been suspended";
that the "continuing detention of the petitioners as an urgent bona fide precautionary and preventive
measure demanded by the necessities of public safety, public welfare and public interest"; that the
President of the Philippines has "undertaken concrete and abundant steps to insure that the
constitutional rights and privileges of the petitioners as well as of the other persons in current
confinement pursuant to Proclamation 889 remain unimpaired and unhampered"; and that
"opportunities or occasions for abuses by peace officers in the implementation of the proclamation
have been greatly minimized, if not completely curtailed, by various safeguards contained in
directives issued by proper authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National Defense, dated August 21, 1971,
directing, inter alia, in connection with the arrest or detention of suspects pursuant to Proclamation
No. 889, that, except when caught inflagrante delicto, no arrest shall be made without warrant
authorized in writing by the Secretary of National Defense; that such authority shall not be granted
unless, "on the basis of records and other evidences," it appears satisfactorily, in accordance with
Rule 113, section 6(b), of the Rules of Court, that the person to be arrested is probably guilty of the
acts mentioned in the proclamation; that, if such person will be charged with a crime subject to an
afflictive penalty under the Anti-Subversion Act, the authorization for his arrest shall not be issued
unless supported by signed intelligence reports citing at least one reliable witness to the same overt
act; that no unnecessary or unreasonable force shall be used in effecting arrests; and that arrested
persons shall not be subject to greater restraint than is necessary for their detention;
2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30, 1971, to all units
of his command, stating that the privilege of the writ is suspended for no other persons than those
specified in the proclamation; that the same does not involve material law; that precautionary
measures should be taken to forestall violence that may be precipitated by improper behavior of
military personnel; that authority to cause arrest under the proclamation will be exercised only by the
Metrocom, CMA, CIS, and "officers occupying position in the provinces down to provincial
commanders"; that there shall be no indiscriminate or mass arrests; that arrested persons shall not

be harmed and shall be accorded fair and humane treatment; and that members of the detainee's
immediate family shall be allowed to visit him twice a week;
3. A memorandum of the Department of National Defense, dated September 2, 1971, directing the
Chief of the Constabulary to establish appropriate Complaints and Action Bodies/Groups to prevent
and/or check any abuses in connection with the suspension of the privilege of the writ; and
4. Executive Order No. 333, dated August 26, 1971, creating a Presidential Administrative
Assistance Committee to hear complaints regarding abuses committed in connection with the
implementation of Proclamation No. 889.
Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan Carandang
had been released from custody on August 31, 1971, "after it had been found that the evidence
against them was insufficient."
In L-34265, the "Answer and Return" filed by respondents therein traversed some allegations of fact
and conclusions of law made in the petition therein and averred that Antolin Oreta, Jr., the petitioner
therein, had been and is detained "on the basis of a reasonable ground to believe that he has
committed overt acts in furtherance of rebellion or insurrection against the government" and,
accordingly, "comes within the class of persons as to whom the privilege of the writ of habeas
corpus has been suspended by Proclamation No. 889, as amended," the validity of which is not
contested by him.
On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation No. 889,
so as to read as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely established
that lawless elements in the country, which are moved by common or similar
ideological conviction, design and goal and enjoying the active moral and material
support of a foreign power and being guided and directed by a well-trained,
determined and ruthless group of men and taking advantage of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and have in
fact joined and banded their forces together for the avowed purpose of [actually]
staging, undertaking, [and] wagging and are actually engaged in an armed
insurrection and rebellion in order to forcibly seize political power in this country,
overthrow the duly constituted government, and supplant our existing political, social,
economic and legal order with an entirely new one whose form of government,
whose system of laws, whose conception of God and religion, whose notion of
individual rights and family relations, and whose political, social and economic
precepts are based on the Marxist-Leninist-Maoist teaching and beliefs;
WHEREAS, these lawless elements, acting in concert through front organizations
that are seemingly innocent and harmless, have continuously and systematically
strengthened and broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our peasantly, laborers,
professionals, intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in infiltrating
almost every segment of our society in their ceaseless determination to erode and
weaken the political, social, economic and moral foundations of our existing
government and influence many peasant, labor, professional, intellectual, student
and mass media organizations to commit acts of violence and depredations against

our duly constituted authorities, against the members of our law enforcement
agencies, and worst of all, against the peaceful members of our society;
WHEREAS, these lawless elements, by their acts of rebellion and insurrection, have
created a state of lawlessness and disorder affecting public safety and security of the
State, the latest manifestation of which has been the dastardly attack on the Liberal
Party rally in Manila on August 21, 1971, which has resulted in the death and serious
injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be taken in
order to maintain peace and order, secure the safety of the people and preserve the
authority of the State;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of habeas corpus for the
persons presently detained, as well as all others who may be hereafter similarly
detained for the crimes of insurrection or rebellion [,] and [all] other [crimes and
offenses] overt acts committed by them in furtherance [or on the occasion] thereof[,].
[or incident thereto, or in connection therewith.] 1
On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly heard and
then the parties therein were allowed to file memoranda, which were submitted from September 3 to
September 9, 1971.
Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended by
Proclamation No. 889-B, lifting the suspension of the privilege of the writ of habeas corpus in the
following provinces, sub-provinces and cities of the Philippine, namely:
A. PROVINCES:
1. Batanes 15. Negros Occ.
2. Ilocos Norte 16. Negros Or.
3. Ilocos Sur 17. Cebu
4. Abra 18. Bohol
5. Abra 19. Capiz
6. Pangasinan 20. Aklan
7. Batangas 21. Antique
8. Catanduanes 22. Iloilo
9. Masbate 23. Leyte
10. Romblon 24. Leyte del Sur
11. Marinduque 25. Northern Samar
12. Or. Mindoro 26. Eastern Samar
13. Occ. Mindoro 27. Western Samar
14. Palawan.
B. SUB-PROVINCES:
1. Guimaras 3. Siquior
2. Biliran

C. CITIES:
1. Laog 10. Bacolod
2. Dagupan 11. Bago
3. San Carlos 12. Canlaon
4. Batangas 13. La Carlota
5. Lipa 14. Bais
6. Puerto Princesa 15. Dumaguete
7. San Carlos (Negros 16. Iloilo
Occ.) 17. Roxas
8. Cadiz 18. Tagbilaran
9. Silay 19. Lapu-lapu
20. Cebu 24. Tacloban
21. Mandaue 25. Ormoc
22. Danao 26. Calbayog
23. Toledo
On September 25, 1971, the President issued Proclamation No. 889-C, restoring the privilege of the
writ in the following provinces and cities:
A. PROVINCES:
1. Surigao del Norte 8. Agusan del Sur
2. Surigao del Sur 9. Misamis Or.
3. Davao del Norte 10. Misamis Occ.
4. Davao del Sur 11. Zamboanga del Norte
5. Davao Oriental 12. Basilan
6. Bukidnon 13. Pagadian
7. Agusan del Norte
B. CITIES:
1. Surigao 8. Tangub
2. Davao 9. Dapitan
3. Butuan 10. Dipolog
4. Cagayan 11. Zamboanga
5. Gingoong 12. Basilan
6. Ozamiz 13. Pagadian.
7. Oroquieta
On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No. 889-D, in
the following places:
A. PROVINCES:
1. Cagayan 5. Camarines
2. Cavite 6. Albay
3. Mountain Province 7. Sorsogon
4. Kalinga-Apayao

B. CITIES:
1. Cavite City 3. Trece Martires
2. Tagaytay 4. Legaspi
As a consequences, the privilege of the writ of habeas corpus is still suspended in the following
eighteen (18) provinces, two (2) sub-provinces and eighteen (18) cities, to wit:
A. PROVINCE:
1. Bataan 10. North Cotabato
2. Benguet 11. Nueva Ecija
3. Bulacan 13. Pampanga
4. Camarines Sur 14. Quezon
5. Ifugao 15. Rizal
6. Isabela 16. South Cotabato
7. Laguna 17. Tarlac
8. Lanao del Norte 18. Zambales
9. Lanao del Norte
B. SUB-PROVINCES:
1. Aurora 2. Quirino
C. CITIES:
1. Angeles 10. Manila
2. Baguio 11. Marawi
3. Cabanatuan 12. Naga
4. Caloocan 13. Olongapo
5. Cotabato 14. Palayan
6. General Santos 15. Pasay
7. Iligan 16. Quezon
8 Iriga 17. San Jose
9 Lucena 18. San Pablo
The first major question that the Court had to consider was whether it would adhere to the view
taken in Barcelon v. Baker, 2 and reiterated in Montenegro v. Castaeda, 3 pursuant to which, "the
authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ
of habeas corpus) belongs to the President and his 'decision is final and conclusive' upon the courts and
upon all other persons." Indeed, had said question been decided in the affirmative the main issue in all of
these cases, except
L-34339, would have been settled, and, since the other issues were relatively of minor importance, said
cases could have been readily disposed of. Upon mature deliberation, a majority of the Members of the
Court had, however, reached, although tentatively, a consensus to the contrary, and decided that the
Court had authority to and should inquire into the existence of the factual bases required by the
Constitution for the suspension of the privilege of the writ; but before proceeding to do so, the Court
deemed it necessary to hear the parties on the nature and extent of the inquiry to be undertaken, none of
them having previously expressed their views thereof. Accordingly, on October 5, 1971, the Court issued,
in L-33964, L-33965, L-33973 and L-33982, a resolution stating in part that

... a majority of the Court having tentatively arrived at a consensus that it may inquire
in order to satisfy itself of the existence of the factual bases for the issuance of
Presidential Proclamations Nos. 889 and 889-A (suspending the privilege of the writ
of habeas corpus for all persons detained or to be detained for the crimes of rebellion
or insurrection throughout the Philippines, which area has lately been reduced to
some eighteen provinces, two subprovinces and eighteen cities with the partial lifting
of the suspension of the privilege effected by Presidential Proclamations Nos. 889-B,
889-C and 889-D) and thus determine the constitutional sufficiency of such bases in
the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par.
2, of the Philippine Constitution; and considering that the members of the Court are
not agreed on the precise scope and nature of the inquiry to be made in the
premises, even as all of them are agreed that the Presidential findings are entitled to
great respect, the Court RESOLVED that these cases be set for rehearing on
October 8, 1971 at 9:30 A.M.
xxx xxx xxx
On October 8, 1971, said four cases were, therefore, heard, once again, but, this time jointly with
cases Nos. L-34004, L-34013, and L-34039, and the parties were then granted a period to file
memoranda, in amplification of their respective oral arguments, which memoranda were submitted
from October 12 to October 21, 1971.
Respondents having expressed, during the oral arguments, on September 1 and October 8, 1971,
their willingness to impart to the Court classified information relevant to these cases, subject to
appropriate security measures, the Court met at closed doors, on October 28 and 29, 1971, and, in
the presence of three (3) attorneys for the petitioners, chosen by the latter, namely, Senator Jose W.
Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor General
and two (2) members of his staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed
Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo Tanabe, Col.
Tagumpay Nanadiego, Judge Advocate General, JAGS (GSC), and other ranking officers of said
Armed Forces, on said classified information, most of which was contained in reports and other
documents already attached to the records. During the proceedings, the members of the Court, and,
occassionally, counsel for the petitioners, propounded pertinent questions to said officers of the
Armed Forces. Both parties were then granted a period of time within which to submit their
respective observations, which were filed on November 3, 1971, and complemented by some
documents attached to the records on November 6, 1971, and a summary, submitted on November
15, 1971, of the aforesaid classified information.
In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the parties
therein were heard in oral argument on November 4, and 16, 1971, respectively.
On November 15, 1971, the Solicitor General filed manifestations motions stating that on
November 13, 1971, the following petitioners were:
(a) released from custody:
(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013

(7) Filomeno M. de Castro -- " " L-34039


(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.
(b) charged, together with other persons named in the criminal complaint filed therefor, with a
violation of Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal's Office of Quezon City:
(1) Angelo de los Reyes -- G.R. No. L-22982 *
(2) Teresito Sison -- " " L-33982 *
(c) accused, together with many others named in the criminal complaint filed therefor, of a violation
of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of First Instance of Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No. 889, as amended, and praying that the
petitions in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be dismissed,
without prejudice to the resolution of the remaining cases. Copy of the criminal complaint filed, as
above stated, with the Court of First Instance of Rizal and docketed therein as Criminal Case No. Q1623 of said court which was appended to said manifestations-motions of the respondent as
Annex 2 thereof shows that Gary Olivar, the petitioner in L-34339, is one of the defendants in said
case.
Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-33973, in
his comment dated November 23, 1971, urged the Court to rule on the merits of the petitions in all of
these cases, particularly on the constitutionality of Presidential Proclamation No. 889, as amended,
upon the ground that he is still detained and that the main issue is one of public interest involving as
it does the civil liberties of the people. Angelo de los Reyes, one of the petitioners in L-33964, L33965 and L-33973, Nemesio E. Prudente and Gerardo Tomas, for whose respective benefit the
petitions in L-33982 and L-34004 have been filed, maintained that the issue in these cases is not
moot, not even for the detainees who have been released, for, as long as the privilege of the writ
remains suspended, they are in danger of being arrested and detained again without just cause or
valid reason. In his reply, dated and filed on November 29, 1971, the Solicitor General insisted that
the release of the above-named petitioners rendered their respective petitions moot and academic.
I
Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the
proclamation suspending the privilege of the writ of habeas corpus. In this connection, it should be
noted that, as originally formulated, Proclamation No. 889 was contested upon the ground that it did
not comply with the pertinent constitutional provisions, namely, paragraph (14) of section 1, Article III
of our Constitution, reading:
The privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion, insurrection, or rebellion, when the public safety requires it, in any way of
which events the same may be suspended wherever during such period the
necessity for such suspension shall exist.
and paragraph (2), section 10, Article VII of the same instrument, which provides that:

The President shall be commander-in-chief of all armed forces of the Philippines, and
whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion,
insurrection, or rebellion, or imminent danger thereof when the public safety requires
it, he may suspend the privileges of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law.
Regardless of whether or not the President may suspend the privilege of the writ of habeas corpus in
case of "imminent danger" of invasion, insurrection or rebellion which is one of the grounds stated
in said paragraph (2), section 10 of Art. VII of the Constitution, but not mentioned in paragraph (14),
section 1 of its Bill of Rights petitioners maintained that Proclamation No. 889 did not declare the
existence of actual "invasion insurrection or rebellion or imminent danger thereof," and that,
consequently, said Proclamation was invalid. This contention was predicated upon the fact that,
although the first "whereas" in Proclamation No. 889 stated that "lawless elements" had "entered into
a conspiracy and have in fact joined and banded their forces together for the avowed purposeof
actually staging, undertaking and waging an armed insurrection and rebellion," the actuality so
alleged refers to the existence, not of an uprising that constitutes the essence of a rebellion or
insurrection, but of the conspiracyand the intent to rise in arms.
Whatever may be the merit of this claim, the same has been rendered moot and academic by
Proclamation No. 889-A, issued nine (9) days after the promulgation of the original proclamation, or
on August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter alia, the first "whereas" of
the original proclamation by postulating the said lawless elements "have entered into a conspiracy
and have in fact joined and banded their forces together for the avowed purpose of staging,
undertaking, waging and are actually engaged in an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted government, and supplant
our existing political, social, economic and legal order with an entirely new one ...." Moreover, the
third "whereas" in the original proclamation was, likewise, amended by alleging therein that said
lawless elements, "by their acts of rebellion and insurrection," have created a state of lawlessness
and disorder affecting public safety and the security of the State. In other words, apart from
adverting to the existence of actualconspiracy and of the intent to rise in arms to overthrow the
government, Proclamation No. 889-A asserts that the lawless elements "are actually engaged in an
armed insurrection and rebellion" to accomplish their purpose.
It may not be amiss to note, at this juncture, that the very tenor of the original proclamation and
particularly, the circumstances under which it had been issued, clearly suggest the intent to aver that
there was and is, actually, a state of rebellion in the Philippines, although the language of said
proclamation was hardly a felicitous one, it having in effect, stressed the actuality of the intent to rise
in arms, rather than of the factual existence of the rebellion itself. The pleadings, the oral arguments
and the memoranda of respondents herein have consistently and abundantly emphasized to
justify the suspension of the privilege of the writ of habeas corpus the acts of violence and
subversion committed prior to August 21, 1971, by the lawless elements above referred to, and the
conditions obtaining at the time of the issuance of the original proclamation. In short, We hold that
Proclamation No. 889-A has superseded the original proclamation and that the flaws attributed
thereto are purely formal in nature.
II
Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the
above-quoted provisions of the Constitution, two (2) conditions must concur for the valid exercise of
the authority to suspend the privilege to the writ, to wit: (a) there must be "invasion, insurrection, or
rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the Constitution "imminent

danger thereof," and (b) "public safety" must require the suspension of the privilege. The Presidential
Proclamation under consideration declares that there has been and there is actually a state of
rebellion and
that 4 "public safety requires that immediate and effective action be taken in order to maintain peace and
order, secure the safety of the people and preserve the authority of the State."
Are these findings conclusive upon the Court? Respondents maintain that they are, upon the
authority of Barcelon v. Baker 5 and Montenegro v. Castaeda. 6 Upon the other hand, petitioners press
the negative view and urge a reexamination of the position taken in said two (2) cases, as well as a
reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it relied
heavily upon Martin v. Mott 7 involving the U.S. President's power to call out the militia, which he being
the commander-in-chief of all the armed forces may be exercised to suppress or prevent any lawless
violence, even without invasion, insurrection or rebellion, or imminent danger thereof, and is, accordingly,
much broader than his authority to suspend the privilege of the writ of habeas corpus, jeopardizing as the
latter does individual liberty; and (b) the privilege had been suspended by the American GovernorGeneral, whose act, as representative of the Sovereign, affecting the freedom of its subjects, can hardly
be equated with that of the President of the Philippines dealing with the freedom of the Filipino people, in
whom sovereignty resides, and from whom all government authority emanates. The pertinent ruling in the
Montenegro case was based mainly upon the Barcelon case, and hence, cannot have more weight than
the same. Moreover, in the Barcelon case, the Court held that it could go into the question: "Did the
Governor-General" acting under the authority vested in him by the Congress of the United States, to
suspend the privilege of the writ of habeas corpus under certain conditions "act in conformance with
such authority?" In other words, it did determine whether or not the Chief Executive had acted in
accordance with law. Similarly, in the Montenegro case, the Court held that petitioner therein had "failed to
overcome the presumption of correctness which the judiciary accords to acts of the Executive ...." In
short, the Court considered the question whether or not there really was are rebellion, as stated in the
proclamation therein contested.
Incidentally, even the American jurisprudence is neither explicit nor clear on the point under
consideration. Although some cases 8 purport to deny the judicial power to "review" the findings made in
the proclamations assailed in said cases, the tenor of the opinions therein given, considered as a whole,
strongly suggests the court's conviction that the conditions essential for the validity of said proclamations
or orders were, in fact, present therein, just as the opposite view taken in other cases 9 had a backdrop
permeated or characterized by the belief that said conditions were absent. Hence, the dictum of Chief
Justice Taney to the effect that "(e)very case must depend on its own circumstances." 10 One of the
important, if not dominant, factors, in connection therewith, was intimated in Sterling v. Constantin, 11 in
which the Supreme Court of the United States, speaking through Chief Justice Hughes, declared that:
.... When there is a substantial showing that the exertion of state power has
overridden private rightssecured by that Constitution, the subject is necessarily one
for judicial inquiry in an appropriate proceeding directed against the individuals
charged with the transgression. To such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively arrived
at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the
issuance of Presidential Proclamations Nos. 889 and 889-A ... and thus determine the constitutional
sufficiency of such basesin the light of the requirements of Article III, sec. 1, par. 14, and Article VII,
sec. 10, par 2, of the Philippine Constitution...." Upon further deliberation, the members of the Court
are now unanimous in the conviction that it has the authority to inquire into the existence of said
factual bases in order to determine the constitutional sufficiency thereof.

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority
conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is
limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an
exception thereto. What is more, it postulates the former in the negative, evidently to stress its
importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended ...."
It is only by way of exception that it permits the suspension of the privilege "in cases of invasion,
insurrection, or rebellion" or, under Art VII of the Constitution, "imminent danger thereof" "when
the public safety requires it, in any of which events the same may be suspended wherever during
such period the necessity for such suspension shall exist." 13 For from being full and plenary, the
authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the
prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the
place where it may be exercised. These factors and the aforementioned setting or conditions mark,
establish and define the extent, the confines and the limits of said power, beyond which it does not exist.
And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative
department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by
courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely,
the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in mind that our political system is
essentially democratic and republican in character and that the suspension of the privilege affects
the most fundamental element of that system, namely, individual freedom. Indeed, such freedom
includes and connotes, as well as demands, the right of every single member of our citizenry to
freely discuss and dissent from, as well as criticize and denounce, the views, the policies and the
practices of the government and the party in power that he deems unwise, improper or inimical to
the commonwealth, regardless of whether his own opinion is objectively correct or not. The
untrammelled enjoyment and exercise of such right which, under certain conditions, may be a
civic duty of the highest order is vital to the democratic system and essential to its successful
operation and wholesome growth and development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and
exercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of
the social order established by the Constitution and the context of the Rule of Law. Accordingly,
when individual freedom is used to destroy that social order, by means of force and violence, in
defiance of the Rule of Law such as by rising publicly and taking arms against the government to
overthrow the same, thereby committing the crime of rebellion there emerges a circumstance that
may warrant a limited withdrawal of the aforementioned guarantee or protection, by suspending the
privilege of the writ of habeas corpus, when public safety requires it. Although we must be
forewarned against mistaking mere dissent no matter how emphatic or intemperate it may be
for dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse
when the existence of such rebellion or insurrection has been fairly established or cannot reasonably
be denied to uphold the finding of the Executive thereon, without, in effect, encroaching upon a
power vested in him by the Supreme Law of the land and depriving him, to this extent, of such
power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the
Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there must be
"invasion, insurrection or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the
Constitution "imminent danger thereof"; and (b) public safety must require the aforementioned
suspension. The President declared in Proclamation No. 889, as amended, that both conditions are
present.
As regards the first condition, our jurisprudence 14 attests abundantly to the Communist activities in the
Philippines, especially in Manila, from the late twenties to the early thirties, then aimed principally at

incitement to sedition or rebellion, as the immediate objective. Upon the establishment of the
Commonwealth of the Philippines, the movement seemed to have waned notably; but, the outbreak of
World War II in the Pacific and the miseries, the devastation and havoc, and the proliferation of
unlicensed firearms concomitant with the military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the Communist threat, with such vigor as to
be able to organize and operate in Central Luzon an army called HUKBALAHAP, during the
occupation, and renamed Hukbong Mapagpalaya ng Bayan (HMP) after liberation which clashed
several times with the armed forces of the Republic. This prompted then President Quirino to issue
Proclamation No. 210, dated October 22, 1950, suspending the privilege of the writ of habeas corpus, the
validity of which was upheld in Montenegro v. Castaeda. 15 Days before the promulgation of said
Proclamation, or on October 18, 1950, members of the Communist Politburo in the Philippines were
apprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they served their
respective sentences. 16

The fifties saw a comparative lull in Communist activities, insofar as peace and order were
concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the Anti-Subversion Act,
was approved, upon the ground stated in the very preamble of said statute that.
... the Communist Party of the Philippines, although purportedly a political party, is in
fact an organized conspiracy to overthrow the Government of the Republic of the
Philippines, not only by force and violence but also by deceit, subversion and other
illegal means, for the purpose of establishing in the Philippines a totalitarian regime
subject to alien domination and control;
... the continued existence and activities of the Communist Party of the Philippines
constitutes a clear, present and grave danger to the security of the Philippines; 17 and
... in the face of the organized, systematic and persistent subversion, national in
scope but international in direction, posed by the Communist Party of the Philippines
and its activities, there is urgent need for special legislation to cope with this
continuing menace to the freedom and security of the country....
In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad
Hoc Committee of Seven copy of which Report was filed in these cases by the petitioners herein

The years following 1963 saw the successive emergence in the country of several
mass organizations, notably the Lapiang Manggagawa (now the Socialist Party of the
Philippines) among the workers; the Malayang Samahan ng mga Magsasaka
(MASAKA) among the peasantry; the Kabataang Makabayan (KM) among the
youth/students; and the Movement for the Advancement of Nationalism (MAN)
among the intellectuals/professionals. The PKP has exerted all-out effort to infiltrate,
influence and utilize these organizations in promoting its radical brand of
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of
which composed mainly of young radicals, constituting the Maoist faction reorganized the
Communist Party of the Philippines early in 1969 and established a New People's Army. This faction
adheres to the Maoist concept of the "Protracted People's War" or "War of National Liberation." Its
"Programme for a People's Democratic Revolution" states, inter alia:

The Communist Party of the Philippines is determined to implement its general


programme for a people's democratic revolution. All Filipino communists are ready to
sacrifice their lives for the worthy cause of achieving the new type of democracy, of
building a new Philippines that is genuinely and completely independent, democratic,
united, just and prosperous ...
xxx xxx xxx
The central task of any revolutionary movement is to seize political power. The
Communist Party of the Philippines assumes this task at a time that both the
international and national situations are favorable of asking the road of armed
revolution ... 19
In the year 1969, the NPA had according to the records of the Department of National Defense
conducted raids, resorted to kidnappings and taken part in other violent incidents numbering over
230, in which it inflicted 404 casualties, and, in turn, suffered 243 losses. In 1970, its records of
violent incidents was about the same, but the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the traditional
group or to the Maoist faction, believe that force and violence are indispensable to the attainment of
their main and ultimate objective, and act in accordance with such belief, although they may
disagree on the means to be used at a given time and in a particular place; and (b) there is a New
People's Army, other, of course, that the arm forces of the Republic and antagonistic thereto. Such
New People's Army is per se proof of the existence of a rebellion, especially considering that its
establishment was announced publicly by the reorganized CPP. Such announcement is in the nature
of a public challenge to the duly constituted authorities and may be likened to a declaration of war,
sufficient to establish a war status or a condition of belligerency, even before the actual
commencement of hostilities.
We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly
risen in arms to overthrow the government and have thus been and still are engaged in rebellion
against the Government of the Philippines.
In fact, the thrust of petitioners' argument is that the New People's Army proper is too small,
compared with the size of the armed forces of the Government, that the Communist rebellion or
insurrection cannot so endanger public safety as to require the suspension of the privilege of the writ
of habeas corpus. This argument does not negate, however, the existence of a rebellion, which, from
the constitutional and statutory viewpoint, need not be widespread or attain the magnitude of a civil
war. This is apparent from the very provision of the Revised Penal Code defining the crime of
rebellion, 20 which may be limited in its scope to "any part" of the Philippines, and, also, from paragraph
(14) of section 1, Article III of the Constitution, authorizing the suspension of the privilege of the writ
"wherever" in case of rebellion "the necessity for such suspension shall exist." In fact, the case of
Barcelon v. Baker referred to a proclamation suspending the privilege in the provinces of Cavite and
Batangas only. The case of In re Boyle 21 involved a valid proclamation suspending the privilege in a
smaller area a country of the state of Idaho.
The magnitude of the rebellion has a bearing on the second condition essential to the validity of the
suspension of the privilege namely, that the suspension be required by public safety. Before
delving, however, into the factual bases of the presidential findings thereon, let us consider the
precise nature of the Court's function in passing upon the validity of Proclamation No. 889, as
amended.

Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand
with the system of checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts withinthe sphere allotted to him by the
Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial
Department, which, in this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check not to supplant 22
the Executive,or to ascertain merely whether he had gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be sure, the
power of the Court to determine the validity of the contested proclamation is far from being identical to, or
even comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal
from inferior courts, in which cases the appellate court has all of the powers of the court of origin.
Under the principle of separation of powers and the system of checks and balances, the judicial
authority to review decisions of administrative bodies or agencies is much more limited, as regards
findings of fact made in said decisions. Under the English law, the reviewing court
determines only whether there is some evidentiary basis for the contested administrative findings; no
quantitative examination of the supporting evidence is undertaken. The administrative findings can
be interfered with only if there is no evidence whatsoever in support thereof, and said finding is,
accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some
American courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases,
in both jurisdictions, have applied the "substantial evidence" rule, which has been construed to mean
"more than a mere scintilla" or "relevant evidence as a reasonable mind might accept as adequate to
support a conclusion," 23 even if other minds equally reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of administrative determinations involving the
exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and
cannot be applied, in its aforesaid form, in testing the validity of an act of Congress or of the
Executive, such as the suspension of the privilege of the writ of habeas corpus, for, as a general
rule, neither body takes evidence in the sense in which the term is used in judicial proceedings
before enacting a legislation or suspending the writ. Referring to the test of the validity of a statute,
the Supreme Court of the United States, speaking through Mr. Justice Roberts, expressed, in the
leading case of Nebbia v. New York, 24 the view that:
... If the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and areneither arbitrary nor discriminatory, the requirements of due process
are satisfied, and judicial determination to that effect renders a court functus officio ...
With the wisdom of the policy adopted, with the adequacy or practically of the law
enacted to forward it, the courts are both incompetent andunauthorized to deal ...
Relying upon this view, it is urged by the Solicitor General
... that judicial inquiry into the basis of the questioned proclamation can go no
further than to satisfy the Court not that the President's decision is correct and that
public safety was endanger by the rebellion and justified the suspension of the writ,
but that in suspending the writ, the President did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of
coordinate branches of the Government, under our constitutional system, seems to demand that the

test of the validity of acts of Congress and of those of the Executive be, mutatis mutandis,
fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper
standard is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of the writ of habeas corpus decreed in
Proclamation No. 889, as amended? Petitioners submit a negative answer upon the ground: (a) that
there is no rebellion; (b) that, prior to and at the time of the suspension of the privilege, the
Government was functioning normally, as were the courts; (c) that no untoward incident,
confirmatory of an alleged July-August Plan, has actually taken place after August 21, 1971; (d) that
the President's alleged apprehension, because of said plan, is non-existent and unjustified; and (e)
that the Communist forces in the Philippines are too small and weak to jeopardize public safety to
such extent as to require the suspension of the privilege of the writ of habeas corpus.
As above indicated, however, the existence of a rebellion is obvious, so much so that counsel for
several petitioners herein have admitted it.
With respect to the normal operation of government, including courts, prior to and at the time of the
suspension of the privilege, suffice it to say that, if the conditions were such that courts of justice no
longer functioned, a suspension of the privilege would have been unnecessary, there being no
courts to issue the writ of habeas corpus. Indeed, petitioners' reference to the normal operation of
courts as a factor indicative of the illegality of the contested act of the Executive stems, perhaps,
from the fact that this circumstance was adverted to in some American cases to justify the
invalidation therein decreed of said act of the Executive. Said cases involved, however, the
conviction by military courts of members of the civilian population charged with common crimes. It
was manifestly, illegal for military courts to assume jurisdiction over civilians so charged, when civil
courts were functioning normally.
Then, too, the alleged absence of any untoward incident after August 21, 1971, does not necessarily
bear out petitioners' view. What is more, it may have been due precisely to the suspension of the
privilege. To be sure, one of its logical effects is to compel those connected with the insurrection or
rebellion to go into hiding. In fact, most of them could not be located by the authorities, after August
21, 1971.
The alleged July-August Plan to terrorize Manila is branded as incredible, upon the theory that,
according to Professor Egbal Ahman of Cornell University, "guerrilla use of terror ... is sociological
and psychologically selective," and that the indiscriminate resort to terrorism is bound to boomerang,
for it tends to alienate the people's symphaty and to deprive the dissidents of much needed mass
support. The fact, however, is that the violence used is some demonstrations held in Manila in 1970
and 1971 tended to terrorize the bulk of its inhabitants. It would have been highly imprudent,
therefore, for the Executive to discard the possibility of a resort to terrorism, on a much bigger scale,
under the July-August Plan.
We will now address our attention to petitioners' theory to the effect that the New People's Army of
the Communist Party of the Philippines is too small to pose a danger to public safety of such
magnitude as to require the suspension of the privilege of the writ of habeas corpus. The flaw in
petitioners' stand becomes apparent when we consider that it assumes that the Armed Forces of the
Philippines have no other task than to fight the New People's Army, and that the latter is the only
threat and a minor one to our security. Such assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971, the Executive had information and
reports subsequently confirmed, in many respects, by the abovementioned Report of the Senate
Ad-Hoc Committee of Seven 25 to the effect that the Communist Party of the Philippines does not

merely adhere to Lenin's idea of a swift armed uprising; that it has, also, adopted Ho Chi Minh's terrorist
tactics and resorted to the assassination of uncooperative local official; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police; that there were fourteen (14)
meaningful bombing incidents in the Greater Manila Area in 1970; that the Constitutional Convention Hall
was bombed on June 12, 1971; that, soon after the Plaza Miranda incident, the NAWASA main pipe, at
the Quezon City-San Juan boundary, was bombed; that this was followed closely by the bombing of the
Manila City Hall, the COMELEC building, the Congress Building and the MERALCO substation at Cubao,
Quezon City; and that the respective residences of Senator Jose J. Roy and Congressman Eduardo
Cojuangco were, likewise, bombed, as were the MERALCO main office premises, along Ortigas Avenue,
and the Doctor's Pharmaceuticals, Inc. Building, in Caloocan City.

Petitioners, similarly, fail to take into account that as per said information and reports the
reorganized Communist Party of the Philippines has, moreover, adopted Mao's concept of protracted
people's war, aimed at the paralyzation of the will to resist of the government, of the political,
economic and intellectual leadership, and of the people themselves; that conformably to such
concept, the Party has placed special emphasis upon a most extensive and intensive program of
subversion by the establishment of front organizations in urban centers, the organization of armed
city partisans and the infiltration in student groups, labor unions, and farmer and professional
groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor
organizations; that it has exploited the youth movement and succeeded in making Communist fronts
of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests, among which are the Malayang Samahan
ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of
Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM)
and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP); that, as of August, 1971, the KM had
two hundred forty-five (245) operational chapters throughout the Philippines, of which seventy-three
(73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon,
forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had
recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended
in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these
actions were organized, coordinated or led by the aforementioned front organizations; that the
violent demonstrations were generally instigated by a small, but well-trained group of armed
agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those
of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of
fifteen (15) persons and the injury of many more.
Subsequent events as reported have also proven that petitioners' counsel have
underestimated the threat to public safety posed by the New People's Army. Indeed, it appears
that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged one (1) raid, in
consequence of which seven (7) soldiers lost their lives and two (2)others were wounded, whereas
the insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed group of NPA,
trained by defector Lt. Victor Corpus, attacked the very command port of TF LAWIN in Isabela,
destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier; that the NPA had in
Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded on the side of
the Government, one (1) BSDU killed and three (3) NPA casualties; that in an encounter at Botolan,
Zambales, one (1) KM-SDK leader, an unidentified dissident, and Commander Panchito, leader of
the dissident group were killed; that on August 26, 1971, there was an encounter in the barrio of San
Pedro. Iriga City, Camarines Sur, between the PC and the NPA, in which a PC and two (2) KM
members were killed; that the current disturbances in Cotabato and the Lanao provinces have been
rendered more complex by the involvement of the CPP/NPA, for, in mid-1971, a KM group, headed
by Jovencio Esparagoza, contacted the Higa-onan tribes, in their settlement in Magsaysay, Misamis
Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as well as conducted

teach-ins in the reservation; that Esparagoza an operation of the PC in said reservation; and that
there are now two (2) NPA cadres in Mindanao.
It should, also, be noted that adherents of the CPP and its front organizations are, according to
intelligence findings, definitely capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall was a "clay-more" mine, a
powerful explosive device used by the U.S. Army, believed to have been one of many pilfered from
the Subic Naval Base a few days before; that the President had received intelligence information to
the effect that there was a July-August Plan involving a wave of assassinations, kidnappings,
terrorism and mass destruction of property and that an extraordinary occurence would signal the
beginning of said event; that the rather serious condition of peace and order in Mindanao,
particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with
the situation; that a sizeable part of our armed forces discharge other functions; and that the
expansion of the CPP activities from Central Luzon to other parts of the country, particularly Manila
and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required
that the rest of our armed forces be spread thin over a wide area.
Considering that the President was in possession of the above data except those related to
events that happened after August 21, 1971 when the Plaza Miranda bombing took place, the
Court is not prepared to hold that the Executive had acted arbitrarily or gravely abused his discretion
when he then concluded that public safety and national security required the suspension of the
privilege of the writ, particularly if the NPA were to strike simultaneously with violent demonstrations
staged by the two hundred forty-five (245) KM chapters, all over the Philippines, with the assistance
and cooperation of the dozens of CPP front organizations, and the bombing or water mains and
conduits, as well as electric power plants and installations a possibility which, no matter how
remote, he was bound to forestall, and a danger he was under obligation to anticipate and arrest.
He had consulted his advisers and sought their views. He had reason to feel that the situation was
critical as, indeed, it was and demanded immediate action. This he took believing in good faith
that public safety required it. And, in the light of the circumstances adverted to above, he had
substantial grounds to entertain such belief.
Petitioners insist that, nevertheless, the President had no authority to suspend the privilege in the
entire Philippines, even if he may have been justified in doing so in some provinces or cities thereof.
At the time of the issuance of Proclamation No. 889, he could not be reasonably certain, however,
about the placed to be excluded from the operation of the proclamation. He needed some time to
find out how it worked, and as he did so, he caused the suspension to be gradually lifted, first, on
September 18, 1971, in twenty-seven (27) provinces, three (3) sub-provinces and twenty six (26)
cities; then, on September 25, 1971, in order fourteen (14) provinces and thirteen (13) cities; and,
still later, on October 4, 1971, in seven (7) additional provinces and four (4) cities, or a total of fortyeight (48) provinces, three (3) sub-provinces and forth-three (43) cities, within a period of forty-five
(45) days from August 21, 1971.
Neither should We overlook the significance of another fact. The President could have declared
a generalsuspension of the privilege. Instead, Proclamation No. 889 limited the suspension to
persons detained "for crimes of insurrection or rebellion, and all other crimes and offenses
committed by them in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith." Even this was further limited by Proclamation No. 889-A, which withdrew from the
coverage of the suspension persons detained for other crimes and offenses committed "on the
occasion" of the insurrection or rebellion, or "incident thereto, in or connection therewith." In fact, the
petitioners in L-33964, L-33982 and L-34004 concede that the President had acted in good faith.

In case of invasion, insurrection or rebellion or imminent danger thereof, the President has, under
the Constitution, three (3) courses of action open to him, namely: (a) to call out the armed forces; (b)
to suspend the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part
thereof under martial law. He had, already, called out the armed forces, which measure, however,
proved inadequate to attain the desired result. Of the two (2)other alternatives, the suspension of the
privilege is the least harsh.
In view of the foregoing, it does not appear that the President has acted arbitrary in issuing
Proclamation No. 889, as amended, nor that the same is unconstitutional.
III
The next question for determination is whether petitioners herein are covered by said Proclamation,
as amended. In other words, do petitioners herein belong to the class of persons as to whom
privilege of the writ of habeas corpus has been suspended?
In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964, Gerardo Tomas,
petitioner in L-34004, and Reynaldo Rimando, petitioner in L-34013, were, on November 13, 1971,
released "permanently" meaning, perhaps, without any intention to prosecute them upon the
ground that, although there was reasonable ground to believe that they had committed an offense
related to subversion, the evidence against them is insufficient to warrant their prosecution; that
Teodosio Lansang, one of the petitioners in L-33964, Rogelio Arienda, petitioner in L-33965,
Nemesio Prudente, petitioner in L-33982, Filomeno de Castro and Barcelisa C. de Castro, for whose
benefit the petition in L-34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265, were, on said
date, "temporarily released"; that Rodolfo del Rosario, one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-33973, as well as Luzvimindo
David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, are still under detention and,
hence, deprived of their liberty, they together with over forty (40) other persons, who are at large
having been accused, in the Court of First Instance of Rizal, of a violation of section 4 of Republic
Act No. 1700 (Anti-Subversion Act); and that Angelo delos Reyes and Teresito Sison, intervenors in
said L-33964, L-33965 and
L-33973, are, likewise, still detained and have been charged together with over fifteen (15) other
persons, who are, also, at large with another violation of said Act, in a criminal complaint filed with
the City Fiscal's Office of Quezon City.
With respect to Vicente Ilao and Juan Carandang petitioners in L-33965 who were released as
early as August 31, 1971, as well as to petitioners Nemesio Prudente, Teodosio Lansang, Rogelio
Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C. de Castro, Reynaldo Rimando, Gerardo
Tomas and Bayani Alcala, who were released on November 13, 1971, and are no longer deprived of
their liberty, their respective petitions have, thereby, become moot and academic, as far as their
prayer for release is concerned, and should, accordingly, be dismissed, despite the opposition
thereto of counsel for Nemesio Prudente and Gerardo Tomas who maintain that, as long as the
privilege of the writ remains suspended, these petitioners might be arrested and detained again,
without just cause, and that, accordingly, the issue raised in their respective petitions is not moot. In
any event, the common constitutional and legal issues raised in these cases have, in fact, been
decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of the petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in L-33964, L-33965
and L-33973, Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, who
are still detained? The suspension of the privilege of the writ was decreed by Proclamation No. 889,

as amended, for persons detained "for the crimes of insurrection or rebellion and other overt acts
committed by them in furtherance thereof."
The records shows that petitioners Luzvimindo David, Rodolfo del Rosario, Victor Felipe, Angelo de
los Reyes, Teresito Sison and Gary Olivar are accused in Criminal Case No. Q-1623 of the Court of
First Instance of Rizal with a violation of the Anti-Subversion Act and that the similar charge against
petitioners Angelo de los Reyes and Teresito Sison in a criminal complaint, originally filed with the
City Fiscal of Quezon City, has, also, been filed with said court. Do the offenses so charged
constitute one of the crimes or overt acts mentioned in Proclamation No. 889, as amended?
In the complaint in said Criminal Case No. 1623, it is alleged:
That in or about the year 1968 and for sometime prior thereto and thereafter up to
and including August 21, 1971, in the city of Quezon, Philippines, and elsewhere in
the Philippines, within the jurisdiction of this Honorable Court, the above-named
accused knowingly, wilfully and by overt acts became officers and/or ranking leaders
of the Communist Party of the Philippines, a subversive association as defined by
Republic Act No. 1700, which is an organized conspiracy to overthrow the
government of the Republic of the Philippines by force, violence, deceit, subversion
and other illegal means, for the purpose of establishing in the Philippines a
communist totalitarian regime subject to alien domination and control;
That all the above-named accused, as such officers and/or ranking leaders of the
Communist Party of the Philippines conspiring, confederating and mutual helping one
another, did then and there knowingly, wilfully, and feloniously and by overt acts
committed subversive acts all intended to overthrow the government of the Republic
of the Philippines, as follows:
1. By rising publicly and taking arms against the forces of the
government, engaging in war against the forces of the
government, destroying property or committing serious violence,
exacting contributions or diverting public lands or property from the
law purposes for which they have been appropriated;
2. By engaging by subversion thru expansion and requirement
activities not only of the Communist Party of the Philippines but also
of the united front organizations of the Communist Party of the
Philippines as the Kabataang Makabayan (KM), Movement for the
Democratic Philippines (MDP), Samahang Demokratikong Kabataan
(SDK), Students' Alliance for National Democracy (STAND), MASAKA
Olalia-faction, Student Cultural Association of the University of the
Philippines (SCAUP), KASAMA, Pagkakaisa ng Magbubukid ng
Pilipinas (PMP) and many others; thru agitation promoted by rallies,
demonstration and strikes some of them violent in nature, intended to
create social discontent, discredit those in power and weaken the
people's confidence in the government; thru consistent propaganda
by publications, writing, posters, leaflets of similar means; speeches,
teach-ins, messages, lectures or other similar means; or thru the
media as the TV, radio or newspapers, all intended to promote the
Communist pattern of subversion;

3. Thru urban guerilla warfare characterized by assassinations,


bombings, sabotage, kidnapping and arson, intended to advertise the
movement, build up its morale and prestige, discredit and demoralize
the authorities to use harsh and repressive measures, demoralize the
people and weaken their confidence in the government and to
weaken the will of the government to resist.
That the following aggravating circumstances attended the commission of the
offense:
a. That the offense was committed in contempt of and with insult to the public
authorities;
b. That some of the overt acts were committed in the Palace of the Chief Executive;
c. That craft, fraud, or disguise was employed;
d. That the offense was committed with the aid of armed men;
e. That the offense was committed with the aid of persons under fifteen(15) years
old.
Identical allegations are made in the complaint filed with the City Fiscal of Quezon City, except that
the second paragraph thereof is slightly more elaborate than that of the complaint filed with the CFI,
although substantially the same. 26
In both complaints, the acts imputed to the defendants herein constitute rebellion and subversion, of
in the language of the proclamation "other overt acts committed ... in furtherance" of said
rebellion, both of which are covered by the proclamation suspending the privilege of the writ. It is
clear, therefore, that the crime for which the detained petitioners are held and deprived of their liberty
are among those for which the privilege of the writ ofhabeas corpus has been suspended.
Up to this point, the Members of the Court are unanimous on the legal principles enunciated.
After finding that Proclamation No. 889, as amended, is not invalid and that petitioners Luzvimindo
David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison are
detained for and actually accused of an offense for which the privilege of the writ has been
suspended by said proclamation, our next step would have been the following: The Court, or a
commissioner designated by it, would have received evidence on whether as stated in
respondents' "Answer and Return" said petitioners had been apprehended and detained "on
reasonable belief" that they had "participated in the crime of insurrection or rebellion."
It is so happened, however, that on November 13, 1971 or two (2) days before the proceedings
relative to the briefing held on October 28 and 29, 1971, had been completed by the filing 27 of the
summary of the matters then taken up the aforementioned criminal complaints were filed against said
petitioners. What is more, the preliminary examination and/or investigation of the charges contained in
said complaints has already begun. The next question, therefore, is: Shall We now order, in the cases at
hand, the release of said petitioners herein, despite the formal and substantial validity of the proclamation
suspending the privilege, despite the fact that they are actually charged with offenses covered by said
proclamation and despite the aforementioned criminal complaints against them and the preliminary
examination and/or investigations being conducted therein?

The Members of the Court, with the exception of Mr. Justice Fernando, are of the opinion, and, so
hold, that, instead of this Court or its Commissioner taking the evidence adverted to above, it is best
to let said preliminary examination and/or investigation to be completed, so that petitioners' released
could be ordered by the court of first instance, should it find that there is no probable cause against
them, or a warrant for their arrest could be issued, should a probable cause be established against
them. Such course of action is more favorable to the petitioners, inasmuch as the preliminary
examination or investigation requires a greater quantum of proof than that needed to establish that
the Executive had not acted arbitrary in causing the petitioners to be apprehended and detained
upon the ground that they had participated in the commission of the crime of insurrection or
rebellion. And, it is mainly for the reason that the Court has opted to allow the Court of First Instance
of Rizal to proceed with the determination of the existence of probable cause, although ordinarily the
Court would have merely determined the existence of the substantial evidence of petitioners'
connection with the crime of rebellion. Besides, the latter alternative would require the reception of
evidence by this Court and thus duplicate the proceedings now taking place in the court of first
instance. What is more, since the evidence involved in the same proceedings would be substantially
the same and the presentation of such evidence cannot be made simultaneously, each proceeding
would tend to delay the other.
Mr. Justice Fernando is of the opinion in line with the view of Mr. Justice Tuason, in Nava v.
Gatmaitan, 28 to the effect that "... 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 a judicial concern ..." that
the filing of the above-mentioned complaint against the six (6) detained petitioners herein, has the effect
of the Executive giving up his authority to continue holding them pursuant to Proclamation No. 889, as
amended, even if he did not so intend, and to place them fully under the authority of courts of justice, just
like any other person, who, as such, cannot be deprived of his liberty without lawful warrant, which has
not, as yet, been issued against anyone of them, and that, accordingly, We should order their immediate
release. Despite the humanitarian and libertarian spirit with which this view had been espoused, the other
Members of the Court are unable to accept it because:
(a) If the proclamation suspending the privilege of the writ of habeas corpus is valid and We so
hold it to be and the detainee is covered by the proclamation, the filing of a complaint or
information against him does not affect the suspension of said privilege, and, consequently, his
release may not be ordered by Us;
(b) Inasmuch as the filing of a formal complaint or information does not detract from the validity and
efficacy of the suspension of the privilege, it would be more reasonable to construe the filing of said
formal charges with the court of first instance as an expression of the President's belief that there are
sufficient evidence to convict the petitioners so charged and that hey should not be released,
therefore, unless and until said court after conducting the corresponding preliminary examination
and/or investigation shall find that the prosecution has not established the existence of a probable
cause. Otherwise, the Executive would have released said accused, as were the other petitioners
herein;
(c) From a long-range viewpoint, this interpretation of the act of the President in having said
formal charges filed is, We believe, more beneficial to the detainees than that favored by Mr.
Justice Fernando. His view particularly the theory that the detainees should be released
immediately, without bail, even before the completion of said preliminary examination and/or
investigation would tend to induce the Executive to refrain from filing formal charges as long as it
may be possible. Manifestly, We should encourage the early filing of said charges, so that courts of
justice could assume jurisdiction over the detainees and extend to them effective protection.
Although some of the petitioners in these cases pray that the Court decide whether the constitutional
right to bail is affected by the suspension of the privilege of the writ of habeas corpus, We do not

deem it proper to pass upon such question, the same not having been sufficiently discussed by the
parties herein. Besides, there is no point in settling said question with respect to petitioners herein
who have been released. Neither is necessary to express our view thereon, as regards those still
detained, inasmuch as their release without bail might still be decreed by the court of first instance,
should it hold that there is no probable cause against them. At any rate, should an actual issue on
the right to bail arise later, the same may be brought up in appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in issuing Proclamation No. 889, as amended,
and that, accordingly, the same is not unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-34013, L-34039 and L-34265,
insofar as petitioners Teodosio Lansang, Bayani Alcala, Rogelio Arienda, Vicentellao, Juan
Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo Rimando, Filomeno M. de Castro,
Barcelisa C. de Castro and Antolin Oreta, Jr. are concerned;
3. The Court of First Instance of Rizal is hereby directed to act with utmost dispatch in conducting
the preliminary examination and/or investigation of the charges for violation of the Anti-Subversion
Act filed against herein petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los
Reyes, Rodolfo del Rosario and Teresito Sison, and to issue the corresponding warrants of arrest, if
probable cause is found to exist against them, or, otherwise, to order their release; and
4. Should there be undue delay, for any reason whatsoever, either in the completion of the
aforementioned preliminary examination and/or investigation, or in the issuance of the proper orders
or resolution in connection therewith, the parties may by motion seek in these proceedings the
proper relief.
5. Without special pronouncement as to costs. It is so ordered.
Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Separate Opinions

CASTRO and BARREDO, JJ., concurring:


While concurring fully in the opinion of the Court, we nevertheless write separately to answer, from
our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view, as we
understand it, is that while an individual may be detained beyond the maximum detention period
fixed by law when the privilege of the writ ofhabeas corpus is suspended, such individual is
nevertheless entitled to be released from the very moment a formal complaint is filed in court against
him. The theory seems to be that from the time the charge is filed, the court acquires, because the
executive officials abdicate, jurisdiction.

This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs.
Gatmaitan. 1 Justice Tuason, in part, said:
All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the court to keep their hands
off unless the cause of the detention be for an offense other than rebellion or
insurrection, which is another matter.
By the same token, if and when a formal complaint is presented, the court steps in
and the executive steps out. The detention ceases to be an executive and becomes
a judicial concern...
But the issue to which the Supreme Court Justices in Nava individually addressed themselves is
radically disparate from that raised in these cases. There the question was whether after the
detainees had been formally charged in court and an order for their arrest had been issued, they
were entitled to bail. It was on that question that the Court was split 5 to 4, and it was the opinion of
Justice Tuason, one of the five, that after the detainees had been accused in court, the question of
release on bail was a matter that the court should decide.
Upon the other hand, the question here presented is whether the detainees should be released
forthwith upon the filing of charges against them in court and cannot thereafter be re-arrested except
only by court order. This is a totally different question. It is our submission that they are not entitled to
be released. The dissent is, we believe, based on the fallacy that when a formal charge is filed
against a person he is thereby surrendered to the court and the arresting officer is thereby divested
of custody over him. Except in a metaphorical sense, the detainee is not delivered or surrendered at
all to the judicial authorities. What the phrase "delivered to the court" simply means is that from the
time a person is indicted in court, the latter acquires jurisdiction over the subject-matter. 2The
detainee remains in the custody of the detaining officer, under the same authority invoked for the
detention, until the court decides whether there is probable cause to order his arrest.
Under ordinary circumstances, when a person is arrested without a warrant and is charged in court,
he is not released. He is held until the judicial authority orders either his release or his confinement.
It is no argument to say that under Article III, section 1 (3) of the Constitution only a court can order
the arrest of an individual. Arrests without warrant are familiar occurrences, and they have been
upheld as constitutional. 3
What is more, the privilege of the writ was suspended precisely to authorize the detention of persons
believed to be plotting against the security of the State until the courts can act on their respective
cases. To require their peremptory release upon the mere filing of charges against them, without
giving the proper court opportunity and time to decide the question of probable cause, would
obviously be to defeat the very basic purpose of the suspension. We think our role as judges in the
cases at bar is clear. After finding that the Presidential decree was validly issued, we should give it
effect. To uphold its validity and then try to dilute its efficacy in the name of personal liberty is, we
believe, actually to doubt the constitutionality of the exercise of the Presidential prerogative.
Not only that. If the rule were that the detainees must be released upon the mere filing of charges
against them in court, it is unlikely that the executive officials would have filed the charges because
of their awareness of the continuing danger which in the first place impelled the arrest of the
detainees, and the end result would be to inflict on the latter a much longer period of deprivation of
personal liberty than is warranted.

Whatever our personal views may be of the power to suspend, the fact remains that the power is
there, writ large and indubitable in the Constitution. It is far too easy to write anthologies on the side
of civil liberties or on the side of governmental order, depending on one's inclination or commitment.
But that is not our function. Constitutional issues, it has been said, do not take the form of right
versus wrong, but of right versus right. And the Court's function, as we see it, is, fundamentally to
moderate the clash of values, and not to inflate them into constitutional dimensions.
Where it is possible, we should avoid passing on a constitutional question. But where there is no
escape from the duty of abstention, our further duty is to decide the question of constitutional validity
on a less heroic plane.
And that is what we have tried to do in pointing out that the ordinary rules of criminal procedure
provide an adequate answer to Mr. Justice Fernando's problem. That solution is for the arresting
officer to hold the person detained until the court can act, with the only difference that where the
privilege of the writ of habeas corpus is available, the arresting officer must release the detainee
upon the expiration of the maximum detention time allowed by law, if he has not delivered the
detainee to the court within that period.
To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after all, no
less to be libertarian. Insistence on it is, to us, and in point of fact, one of the cornerstone of
liberalism.
FERNANDO, J., concurring and dissenting:
The decision of the Court penned by the Chief Justice easily ranks with his many landmark opinions
in Constitutional Law and is in the tradition of the great judicial pronouncements from this Tribunal.
Skillful in its analysis, impressive as to its learning, comprehensive in its scope, and compelling in its
logic, it exerts considerable persuasive force. There is much in it therefore to which concurrence is
easily yielded. I find it difficult however to accept the conclusion that the six petitioners still under
detention should not be set free. It is for me a source of deep regret that having gone quite far in
manifesting the utmost sympathy for and conformity with the claims of civil liberties, it did not go
farther. Candor induces the admission though that the situation realistically viewed may not justify
going all the way. Nonetheless the deeply-rooted conviction as to the undoubted primacy of
constitutional rights, even under circumstances the least propitious, precludes me from joining my
brethren in that portion of the decision reached. Nor should I let this opportunity pass without
acknowledging the fairness, even the generosity, in the appraisal of my position in the position of the
Chief Justice.
1. The function of judicial review fitly characterized as both delicate and awesome is never more so
than when the judiciary is called upon to pass on the validity of an act of the President arising from
the exercise of a power granted admittedly to cope with an emergency or crisis situation. More
specifically, with reference to the petitions before us, the question that calls for prior consideration is
whether the suspension of the privilege of the writ ofhabeas corpus is tainted by constitutional
infirmity. What the President did attested to an executive determination of the existence of the
conditions that warranted such a move. For one of the mandatory provisions of the Bill of Rights 1 is
that no such suspension is allowable, except in cases of invasion, insurrection or rebellion, when the
public safety requires, and, even, then, only in such places and for such period of time as may be
necessary. 2 There is the further provision that the constitutional official so empowered to take such a step
is the President. 3 The exceptional character of the situation is thus underscored. The presumption would
seem to be that if such a step were taken, there must have been a conviction on the part of the Executive
that he could not, in the fulfillment of the responsibility entrusted to him, avoid doing so. That decision is
his to make; it is not for the judiciary. It is therefore encased in the armor of what must have been a
careful study on his part, in the light of relevant information which as Commander-in-Chief he is furnished,

ordinarily beyond the ken of the courts. When it is considered further that the Constitution does admit that
the sphere of individual freedom contracts and the scope of governmental authority expands during times
of emergency, it becomes manifest why an even greater degree of caution and circumspection must be
exercised by the judiciary when, on this matter, it is called upon to discharge the function of judicial
review.

2. Not that the judiciary has any choice on the matter. That view would indict itself for unorthodoxy if
it maintains that the existence of rebellion suffices to call for the disregard of the applicable
constitutional guarantees. Its implication would be that the Constitution ceases to be operative in
times of danger to national safety and security. Well has the American Supreme Court in the leading
case of Ex-parte Milligan 4 stated: "The Constitution is a law for rulers and for people equally in war and
in peace and covers with the shield of its protection all classes of men at all times and under all
circumstances." This ringing affirmation should at the very least give pause to those troubled by the
continuing respect that must be accorded civil liberties under crisis conditions. The fact that the
Constitution provides for only one situation where a provision of the Bill of Rights may be suspended,
emphasizes the holding in the above-cited Milligan case that the framers of the Constitution "limited the
suspension to one great right and left the rest to remain forever inviolable." While perhaps at times likely
to give rise to difficulties in the disposition of cases during a troubled era where a suspension has been
decreed, such a view is to be taken into careful consideration.
3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice but to
apply its provisions in the determination of actual cases and controversies before it. Nor is this all.
The protection of the citizen and the maintenance of his constitutional rights is one of the highest
duties and privileges of the judiciary. 5The exercise thereof according to Justice Laurel requires that it
gives effect to the supreme law to the extent in clear cases of setting aside legislative and executive
action. 6 The supreme mandates of the Constitution are not to be loosely brushed aside. 7 Otherwise, the
Bill or Rights might be emasculated into mere expressions of sentiment. 8 Speaking of this Court, Justice
Abad Santos once pertinently observed: "This court owes its own existence to that great instrument and
derives all its powers therefrom. In the exercise of its powers and jurisdiction, this court is bound by the
provisions of the Constitution."9 Justice Tuason would thus apply the constitutional rights with undeviating
rigidity: "To the plea that the security of the State would be jeopardized by the release of the defendants
on bail, the answer is that the existence of danger is never a justification for courts to tamper with the
fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding
to no pressure of convenience, expediency, or the so-called 'judicial statesmanship.' The Legislature itself
can not infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill
of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be
amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the
repository of civil liberty are bound to protect and maintain undiluted individual rights." 10
It is in that context, to my mind, that the petitions before us should be appraised, for in terms of
physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas corpus occupies
a place second to none. As was stressed in Gumabon v. Director of Prisons: 11 "Rightly then could
Chafee refer to the writ 'as the most important human rights provision' in the fundamental law." Care is to
be taken then lest in the inquiry that must be undertaken to determine whether the constitutional
requisites justifying a suspension are present, the effects thereof as to the other civil liberties are not fully
taken into account. It affords no justification to say that such a move was prompted by the best motives
and loftiest of intentions. Much less can there be acceptance of the view, as contended by one of the
counsel for respondents, that between the safety of the overwhelming majority of Filipinos and the claims
of the petitioners to liberty, the former must prevail. That is to indulge in the vice of over simplification. Our
fundamental postulate is that the state exists to assure individual rights, to protect which governments are
instituted deriving their just powers from the consent of the governed. "The cardinal article of faith of our
civilization," according to Frank further, "is the inviolable character of the individual." 12

4. With all the admitted difficulty then that the function of judicial review presents in passing upon the
executive determination of suspending the privilege of the writ, there is still no way of evading such a
responsibility, except on the pain of judicial abdication. It may not admit of doubt that on this matter
this Court, unlike the President, cannot lay claim to the experience and the requisite knowledge that
would instill confidence in its decisions. That is no warrant for an unquestioning and uncritical
acceptance of what was done. It cannot simply fold its hands and evince an attitude of unconcern. It
has to decide the case. This it does by applying the law to the facts as found, as it would in ordinary
cases. If petitioners then can make out a case of an unlawful deprivation of liberty, they are entitled
to the writ prayed for. If the suspension of the privilege be the justification, they could, as they did,
challenge its validity. To repeat, this Court, even if denied the fullness of information and the
conceded grasp of the Executive still must adjudicate the matter as best it can. It has to act not by
virtue of its competence but by the force of its commission a function authenticated by history. 13 That
would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of liberty and
equally against the erosion of possible encroachments, whether minute or extensive. 14 Even if there be
no showing then of constitutional infirmity, at least one other branch of the government, that to which such
an awesome duty had been conferred has had the opportunity of reflecting on the matter with
detachment, with objectivity, and with full awareness of the commands of the Constitution as well as the
realities of the situation.
5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by reliance
on the doctrine of political questions. The term has been made applicable to controversies clearly
non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately
subject to its cognizance, as to which there has been a prior legislative or executive determination to
which deference must be paid. 15 It has likewise been employed loosely to characterize a suit where the
party proceeded against is the President or Congress, or any branch thereof. 16 If to be de-limited with
accuracy, "political questions" should refer to such as would under the Constitution be decided by the
people in their sovereign capacity or in regard to which full discretionary authority is vested either in the
Presidency or Congress. It is thus beyond the competence of the judiciary to pass upon. 17 Unless, clearly
falling within the above formulation, the decision reached by the political branches whether in the form of
a congressional act or an executive order could be tested in court. Where private rights are affected, the
judiciary has no choice but to look into its validity. It is not to be lost sight of that such a power comes into
play if there is an appropriate proceeding that may be filed only after either coordinate branch has acted.
Even when the Presidency or Congress possesses plenary power, its improvidence exercise or the abuse
thereof, if shown, may give rise to a justiciable controversy. 18 For the constitutional grant of authority is
not usually unrestricted. There are limits to what may be done and how it is to be accomplished.
Necessarily then, the courts in the proper exercise of judicial review could inquire into the question of
whether or not either of the two coordinate branches has adhered to what is laid down by the Constitution.
The question thus posed is judicial rather than political. So it is in the matter before us so clearly
explained in the opinion of the Chief Justice.
6. The doctrine announced in Montenegro v. Castaeda 19 that such a question is political has thus
been laid to rest. It is about time too. It owed its existence to the compulsion exerted by Barcelon v. Baker,
a 1905 decision. 20 This Court was partly misled by an undue reliance in the latter case on what it
considered to be authoritative pronouncements from such illustrious American jurists as Marshall, Story,
and Taney. That is to misread what was said by them. This is most evidence in the case of Chief Justice
Marshall, whose epochal Marbury v. Madison 21 was cited. Why that was so is difficult to understand. For it
speaks to the contrary. It was by virtue of this decision that the function of judicial review owes its origin
notwithstanding the absence of any explicit provision in the American Constitution empowering the courts
to do so. Thus: "It is emphatically the province and duty of the judicial department to say what the law is.
Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two
laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition
to the constitution: if both the law and the constitution apply to a particular case, so that the court must
either decide that case conformably 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 of judicial duty. If, the, the courts are to regard the constitution, and the
constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act,
must govern the case to which they both apply." 22

Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin v.
Mott, 23 as made clear in the opinion of the Chief Justice, an authority directly in point. There, a militiaman
had been convicted of failing to respond to a call, made under the Act of 1795, to serve during the War of
1812. His property was taken to satisfy the judgment. He brought an action of replevin. The American
Constitution empowers its Congress "to provide for calling forth the Militia" in certain cases, and Congress
did provide that in those cases the President should have authority to make the call. All that Justice Story
did in construing the statute in the light of the language and purpose of her Constitution was to recognize
the authority of the American President to decide whether the exigency has arisen. In stating that such
power was exclusive and thus had a conclusive effect, he relied on the language employed, impressed
with such a character. The constitutional provision on the suspension of the privilege of the writ is, as
shown, anything but that. 24 Chief Justice Taney, in Luther v. Borden, 25 likewise had to deal with a situation
involving the calling out of the militia. As a matter of fact, an eminent commentator speaking of the two
above decisions had this apt observation: "The common element in these opinions would seem to be a
genuine judicial reluctance to speak in a situation where the voice of the Court, even if heard, could not
have any effect. More than this, both Story and Taney seem to share the suspicion, unusual in them, that
under a popular form of government there are certain questions that the political branches must be
trusted to answer with finality." 26 What was said next is even more pertinent. Thus: "It would be
dangerous and misleading to push the principles of these cases too far, especially the doctrine of 'political
questions' as implied in Luther v. Borden. Given the opportunity to afford a grievously injured citizen relief
from a palpably unwarranted use of presidential or military power, especially when the question at issue
falls in the penumbra between the 'political' and the 'justiciable', the Court will act as if it had never heard
of this doctrine and its underlying assumption that there are some powers against which the judiciary
simply cannot be expected to act as the last line of defense." 27 It would thus seem evidence that support
for the hitherto prevailing Montenegro ruling was rather frail. Happily, with our decision, it is no longer
capable of the mischief to which it does lend itself of an undue diminution of judicial power to the
prejudice of constitutional rights.
7. With such presidential determination of the existence of the conditions required by the
Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other
branches, this Court may thus legitimately inquire into its validity. The question before us, it bears
repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is
valid. The starting point must be a recognition that the power to suspend the privilege of the writ
belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be
respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited
then to the ascertainment of whether or not such a suspension, in the light of the credible information
furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for
petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is
not the correctness but the reasonableness of the action taken. One who is not the Executive but
equally knowledgeable may entertain a different view, but the decision rests with the occupant of the
office. As would be immediately apparent even from a cursory perusal of the data furnished the
President, so impressively summarized in the opinion of the Chief Justice, the imputation of
arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where
the suspension operates as well as his instructions attested to a firm resolve on his part to keep
strictly within the bounds of his authority. Under the circumstances, the decision reached by the
Court that no finding of unconstitutionality is warranted commends itself for approval. The most that
can be said is that there was a manifestation of presidential power well-nigh touching the extreme
border of his conceded competence, beyond which a forbidden domain lies. The requisite showing
of either improvidence or abuse has not been made.

8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ partakes
of an executive action which if valid binds all who are within its operations. The function of enacting a
legal norm general in character appertains to either Congress or the President. Its specific
application to particular individuals, like petitioners here, is however a task incumbent on the
judiciary. What is more, as had just been explained, its validity maybe tested in courts. Even if valid,
any one may seek judicial determination as to whether he is embraced within its terms. After our
declaration of the validity of the Proclamation No. 889 as amended, the next question is its
applicability to petitioners. I am the first to recognize the meticulous care with which the Chief
Justice, after reaching the conclusion that petitioners are covered by the suspension, saw to it that
their constitutional rights are duly safeguarded in whatever proceedings they would have thereafter
to face. There is thus as assurance that as far as human foresight can anticipate matters, the
possibility of abuse is minimized.
The matter, for me, could be viewed independently of whether or not petitioners, by the conduct
imputed to them, could be detained further by virtue of the suspension of the privilege of the writ. For
admittedly, a supervening fact, the Executive's determination to have them charged according to the
ordinary procedural rules, did present itself. There was thus introduced an element decisive in its
consequences. They are entitled to treatment no different from that accorded any other individual
facing possible criminal charges. The opinion of the Chief Justice is correct in pointing out that such
an approach follows the dictum of Justice Tuason, speaking for himself in Nava v.
Gatmaitan, 28 where a majority of five, lacking just one vote to enable this Court to reach a binding
decision, did arrive at the conclusion that the suspension of the privilege of the writ does not suspend the
right to bail. Thus: "By the same token, 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 a judicial concern.
Thereupon the corresponding court assumes its role and the judicial process takes its course to the
exclusion of the executive or the legislative departments. Hence forward, the accused is entitled to
demand all the constitutional safeguards and privileges essential to due process." 29 Parenthetically, it
may be observed that the above view reflects the stand taken by Justice Recto, fortified by Justice Laurel,
drawing heavily on continental juristic thought, both of whom, having retired from the bench and thereafter
having been elected to the Senate, were invited to appear as amici curiae in the Nava case.
It would follow to my way of thinking then that the petitioners still detained ought not to be further
deprived of their liberty in the absence of a warrant of arrest for whatever offense they may be held
to answer, to be issued by a judge after a finding of probable cause. That is to comply with the
constitutional requirement against unreasonable search and seizure. 30 Moreover, to keep them in
confinement after the ordinary processes of the law are to be availed of, as thereafter decreed by the
Executive itself is to ignore the safeguard in the Bill of Rights that no person shall be held to answer for a
criminal offense without due process of law. 31 That would explain why with full recognition of the sense of
realism that infuses the opinion of the Court, I cannot, from the above standpoint, reach the same
conclusion they did. These six petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo, David, Gary
Olivar, Angelo de los Reyes and Teresito Sison, have, for me, become immune from the operation of the
proclamation suspending the privilege of the writ ofhabeas corpus and are thus entitled to their liberty. I
am reinforced in my conviction by the well-settled principle of constitutional construction that if there are
two possible modes of interpretation, that one which raises the least constitutional doubt should be
preferred. Certainly, to my way of thinking, the choice is obvious. That interpretation which would throw
the full mantle of protection afforded by the Constitution to those unfortunate enough to be caught in the
meshes of criminal law is more in keeping with the high estate accorded constitutional rights.
There is another consideration that strengthens my conviction on the matter. The language of the
Constitution would seem to imply at the most that the suspension of the privilege of the writ renders
it unavailable for the time being. Still there are authorities sustaining the view that preventive
detention subject to the test of good faith is allowable. 32 Such a doctrine is no doubt partly traceable to
Anglo-American legal history where as pointed out by Maine: "Substantive law has at first the look of
being gradually secreted in the interstices of procedure." 33 The writ of habeas corpus then is more than

just an efficacius device or the most speedy means of obtaining one's liberty. It has become a most
valuable substantive right. It would thus serve the cause of constitutional rights better if the Tuason dictum
as to the judicial process supplanting executive rule the moment charges are filed be accorded
acceptance. Thereby the number of individuals who would have to submit to further detention, that may
well turn out to be unjustified, would be reduced. What is more, greater fidelity is manifested to the
principle that liberty is the rule and restraint the exception.

I am not of course insensible to the observation in the opinion of the Court that this concept could be
an obstacle to the early resumption of the ordinary judicial process as the Executive might be
minded to postpone resort to it, considering that there would necessarily be an end to the detention
at that early stage of individuals who continue to pose risk to the safety of the government. It does
occur to me, however, that the presumption should be that the high executive dignitaries can be
trusted to act in accordance with the dictates of good faith and the command of the Constitution. At
least, such seems to be the case now. The opinion of the Court is quite explicit as to the measures
taken to minimize the possibility of abuse from officials in the lower category, who in their zeal or
even from less worthy motives might make a mockey of the other constitutional rights. That is as it
should be. It should continue to be so even if there be acceptance of the doctrine enunciated by
Justice Tuason. There is, for me at least, no undue cause for pessimism.
These is to my mind another reinforcement to this approach to the question before us, perhaps one
based more on policy rather than strictly legal considerations. The petitioners who have not been
released are youth leaders, who for motives best known to them, perhaps excess of idealism,
impatience with existing conditions, even overweening ambition, clamor for change, apparently
oblivious at times that it could be accomplished through means of which the law does not
disapprove. It would be premature at this stage to say whether or not their activities have incurred for
them a penal sanction, which certainly would be appropriate if their conduct is beyond the pale. Even
they should recognize that the existing order has the right to defendant itself against those who
would destroy it. Nonetheless as a constitutional democracy can justifiably pride itself on its
allegiance to ways of persuasion rather than coercion, the most meticulous observance of the free
way of life seems to me, even at this stage, not without its beneficent influence on their future course
of conduct. This is not by any means to intimate that my brethren view matters differently. Far from it.
Any difference if at all in the positions taken is a question of emphasis. Rightly, the opinion of the
Chief Justice stresses the importance of the rule of law. It is to be hoped that with a proper
understanding of what has been decided by the Court today, there would be a diminution of the
wholesale condemnation of the present system of government by some sectors of the youth and
perhaps even lead to much-needed refinement in the volume and quality of their utterances. It could
even conceivably, not only for them but for others of a less radical cast of mind, but equally suffering
from disenchantment and disillusion, induce a reassessment and reappraisal of their position, even if
from all appearances their commitment and dedication are plain for all to see. More than that, such a
response will go a long way towards a keener appreciation of the merits of a constitutional
democracy. For thereby, it demonstrates that it lives up to its ideas; it strives to act in accordance
with what it professes. Its appeal for all sectors or society becomes strengthened and vitalized. Nor
do I close my eyes to the risk that such an attitude towards those who constitute a source of danger
entails. That for me is not conclusive. With nations, as with ordinary mortals, that is unavoidable.
Repose, in the often-quoted aphorism of Holmes, is not the destiny of man.
9. One last observation. It would appear to me that if there is really a resolve to maintain inviolate
constitutional rights for all, more especially so for those inclined and disposed to differ and to be
vocal, perhaps even intemperate, in their criticism, that serious thought should be given to the
desirability of removing from the President his power to suspend the privilege of the writ of habeas
corpus as well as the power to declare martial law. Nor would the government be lacking in authority
to cope with the crisis of invasion, insurrection, or rebellion or lawless violence, as the President as
commander-in-chief can summon the aid of the armed forces to meet the danger posed to public

safety. If the privilege of the writ cannot be suspended and martial law beyond the power of the
President to declare, there is a greater likelihood as far as the rights of the individual are concerned,
of the Constitution remaining at all times supreme, as it ought to be, whether it be in peace or in war
or under other crisis conditions. As long, however, as such a presidential prerogative exists, it would
not be proper for the courts not to accord recognition to its exercise, if there be observance of the
limitations imposed by the Constitution. At the most, they can only through construction nullify what
would amount to an unconstitutional application. How desirable it would be then, to my way of
thinking, if the Constitution would strip the President of such power. That would be constitutionalism
triumphant. In terms of Lincoln's memorable dilemma, the government would be neither too strong
for the liberties of the people nor too weak to maintain its existence. This is a matter though
appropriately addressed to the Constitutional Convention.
On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason dictum in the
Nava case did result in my inability to concur fully with the opinion of the Chief Justice, which, as
pointed out at the outset, is possessed of a high degree of merit.

Separate Opinions
CASTRO and BARREDO, JJ., concurring:
While concurring fully in the opinion of the Court, we nevertheless write separately to answer, from
our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view, as we
understand it, is that while an individual may be detained beyond the maximum detention period
fixed by law when the privilege of the writ ofhabeas corpus is suspended, such individual is
nevertheless entitled to be released from the very moment a formal complaint is filed in court against
him. The theory seems to be that from the time the charge is filed, the court acquires, because the
executive officials abdicate, jurisdiction.
This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs.
Gatmaitan. 1 Justice Tuason, in part, said:
All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the court to keep their hands
off unless the cause of the detention be for an offense other than rebellion or
insurrection, which is another matter.
By the same token, if and when a formal complaint is presented, the court steps in
and the executive steps out. The detention ceases to be an executive and becomes
a judicial concern...
But the issue to which the Supreme Court Justices in Nava individually addressed themselves is
radically disparate from that raised in these cases. There the question was whether after the
detainees had been formally charged in court and an order for their arrest had been issued, they
were entitled to bail. It was on that question that the Court was split 5 to 4, and it was the opinion of
Justice Tuason, one of the five, that after the detainees had been accused in court, the question of
release on bail was a matter that the court should decide.

Upon the other hand, the question here presented is whether the detainees should be released
forthwith upon the filing of charges against them in court and cannot thereafter be re-arrested except
only by court order. This is a totally different question. It is our submission that they are not entitled to
be released. The dissent is, we believe, based on the fallacy that when a formal charge is filed
against a person he is thereby surrendered to the court and the arresting officer is thereby divested
of custody over him. Except in a metaphorical sense, the detainee is not delivered or surrendered at
all to the judicial authorities. What the phrase "delivered to the court" simply means is that from the
time a person is indicted in court, the latter acquires jurisdiction over the subject-matter. 2The
detainee remains in the custody of the detaining officer, under the same authority invoked for the
detention, until the court decides whether there is probable cause to order his arrest.
Under ordinary circumstances, when a person is arrested without a warrant and is charged in court,
he is not released. He is held until the judicial authority orders either his release or his confinement.
It is no argument to say that under Article III, section 1 (3) of the Constitution only a court can order
the arrest of an individual. Arrests without warrant are familiar occurrences, and they have been
upheld as constitutional. 3
What is more, the privilege of the writ was suspended precisely to authorize the detention of persons
believed to be plotting against the security of the State until the courts can act on their respective
cases. To require their peremptory release upon the mere filing of charges against them, without
giving the proper court opportunity and time to decide the question of probable cause, would
obviously be to defeat the very basic purpose of the suspension. We think our role as judges in the
cases at bar is clear. After finding that the Presidential decree was validly issued, we should give it
effect. To uphold its validity and then try to dilute its efficacy in the name of personal liberty is, we
believe, actually to doubt the constitutionality of the exercise of the Presidential prerogative.
Not only that. If the rule were that the detainees must be released upon the mere filing of charges
against them in court, it is unlikely that the executive officials would have filed the charges because
of their awareness of the continuing danger which in the first place impelled the arrest of the
detainees, and the end result would be to inflict on the latter a much longer period of deprivation of
personal liberty than is warranted.
Whatever our personal views may be of the power to suspend, the fact remains that the power is
there, writ large and indubitable in the Constitution. It is far too easy to write anthologies on the side
of civil liberties or on the side of governmental order, depending on one's inclination or commitment.
But that is not our function. Constitutional issues, it has been said, do not take the form of right
versus wrong, but of right versus right. And the Court's function, as we see it, is, fundamentally to
moderate the clash of values, and not to inflate them into constitutional dimensions.
Where it is possible, we should avoid passing on a constitutional question. But where there is no
escape from the duty of abstention, our further duty is to decide the question of constitutional validity
on a less heroic plane.
And that is what we have tried to do in pointing out that the ordinary rules of criminal procedure
provide an adequate answer to Mr. Justice Fernando's problem. That solution is for the arresting
officer to hold the person detained until the court can act, with the only difference that where the
privilege of the writ of habeas corpus is available, the arresting officer must release the detainee
upon the expiration of the maximum detention time allowed by law, if he has not delivered the
detainee to the court within that period.

To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after all, no
less to be libertarian. Insistence on it is, to us, and in point of fact, one of the cornerstone of
liberalism.
FERNANDO, J., concurring and dissenting:
The decision of the Court penned by the Chief Justice easily ranks with his many landmark opinions
in Constitutional Law and is in the tradition of the great judicial pronouncements from this Tribunal.
Skillful in its analysis, impressive as to its learning, comprehensive in its scope, and compelling in its
logic, it exerts considerable persuasive force. There is much in it therefore to which concurrence is
easily yielded. I find it difficult however to accept the conclusion that the six petitioners still under
detention should not be set free. It is for me a source of deep regret that having gone quite far in
manifesting the utmost sympathy for and conformity with the claims of civil liberties, it did not go
farther. Candor induces the admission though that the situation realistically viewed may not justify
going all the way. Nonetheless the deeply-rooted conviction as to the undoubted primacy of
constitutional rights, even under circumstances the least propitious, precludes me from joining my
brethren in that portion of the decision reached. Nor should I let this opportunity pass without
acknowledging the fairness, even the generosity, in the appraisal of my position in the position of the
Chief Justice.
1. The function of judicial review fitly characterized as both delicate and awesome is never more so
than when the judiciary is called upon to pass on the validity of an act of the President arising from
the exercise of a power granted admittedly to cope with an emergency or crisis situation. More
specifically, with reference to the petitions before us, the question that calls for prior consideration is
whether the suspension of the privilege of the writ ofhabeas corpus is tainted by constitutional
infirmity. What the President did attested to an executive determination of the existence of the
conditions that warranted such a move. For one of the mandatory provisions of the Bill of Rights 1 is
that no such suspension is allowable, except in cases of invasion, insurrection or rebellion, when the
public safety requires, and, even, then, only in such places and for such period of time as may be
necessary. 2 There is the further provision that the constitutional official so empowered to take such a step
is the President. 3 The exceptional character of the situation is thus underscored. The presumption would
seem to be that if such a step were taken, there must have been a conviction on the part of the Executive
that he could not, in the fulfillment of the responsibility entrusted to him, avoid doing so. That decision is
his to make; it is not for the judiciary. It is therefore encased in the armor of what must have been a
careful study on his part, in the light of relevant information which as Commander-in-Chief he is furnished,
ordinarily beyond the ken of the courts. When it is considered further that the Constitution does admit that
the sphere of individual freedom contracts and the scope of governmental authority expands during times
of emergency, it becomes manifest why an even greater degree of caution and circumspection must be
exercised by the judiciary when, on this matter, it is called upon to discharge the function of judicial
review.
2. Not that the judiciary has any choice on the matter. That view would indict itself for unorthodoxy if
it maintains that the existence of rebellion suffices to call for the disregard of the applicable
constitutional guarantees. Its implication would be that the Constitution ceases to be operative in
times of danger to national safety and security. Well has the American Supreme Court in the leading
case of Ex-parte Milligan 4 stated: "The Constitution is a law for rulers and for people equally in war and
in peace and covers with the shield of its protection all classes of men at all times and under all
circumstances." This ringing affirmation should at the very least give pause to those troubled by the
continuing respect that must be accorded civil liberties under crisis conditions. The fact that the
Constitution provides for only one situation where a provision of the Bill of Rights may be suspended,
emphasizes the holding in the above-cited Milligan case that the framers of the Constitution "limited the
suspension to one great right and left the rest to remain forever inviolable." While perhaps at times likely

to give rise to difficulties in the disposition of cases during a troubled era where a suspension has been
decreed, such a view is to be taken into careful consideration.

3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice but to
apply its provisions in the determination of actual cases and controversies before it. Nor is this all.
The protection of the citizen and the maintenance of his constitutional rights is one of the highest
duties and privileges of the judiciary. 5The exercise thereof according to Justice Laurel requires that it
gives effect to the supreme law to the extent in clear cases of setting aside legislative and executive
action. 6 The supreme mandates of the Constitution are not to be loosely brushed aside. 7 Otherwise, the
Bill or Rights might be emasculated into mere expressions of sentiment. 8 Speaking of this Court, Justice
Abad Santos once pertinently observed: "This court owes its own existence to that great instrument and
derives all its powers therefrom. In the exercise of its powers and jurisdiction, this court is bound by the
provisions of the Constitution."9 Justice Tuason would thus apply the constitutional rights with undeviating
rigidity: "To the plea that the security of the State would be jeopardized by the release of the defendants
on bail, the answer is that the existence of danger is never a justification for courts to tamper with the
fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding
to no pressure of convenience, expediency, or the so-called 'judicial statesmanship.' The Legislature itself
can not infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill
of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be
amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the
repository of civil liberty are bound to protect and maintain undiluted individual rights." 10
It is in that context, to my mind, that the petitions before us should be appraised, for in terms of
physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas corpus occupies
a place second to none. As was stressed in Gumabon v. Director of Prisons: 11 "Rightly then could
Chafee refer to the writ 'as the most important human rights provision' in the fundamental law." Care is to
be taken then lest in the inquiry that must be undertaken to determine whether the constitutional
requisites justifying a suspension are present, the effects thereof as to the other civil liberties are not fully
taken into account. It affords no justification to say that such a move was prompted by the best motives
and loftiest of intentions. Much less can there be acceptance of the view, as contended by one of the
counsel for respondents, that between the safety of the overwhelming majority of Filipinos and the claims
of the petitioners to liberty, the former must prevail. That is to indulge in the vice of over simplification. Our
fundamental postulate is that the state exists to assure individual rights, to protect which governments are
instituted deriving their just powers from the consent of the governed. "The cardinal article of faith of our
civilization," according to Frank further, "is the inviolable character of the individual." 12
4. With all the admitted difficulty then that the function of judicial review presents in passing upon the
executive determination of suspending the privilege of the writ, there is still no way of evading such a
responsibility, except on the pain of judicial abdication. It may not admit of doubt that on this matter
this Court, unlike the President, cannot lay claim to the experience and the requisite knowledge that
would instill confidence in its decisions. That is no warrant for an unquestioning and uncritical
acceptance of what was done. It cannot simply fold its hands and evince an attitude of unconcern. It
has to decide the case. This it does by applying the law to the facts as found, as it would in ordinary
cases. If petitioners then can make out a case of an unlawful deprivation of liberty, they are entitled
to the writ prayed for. If the suspension of the privilege be the justification, they could, as they did,
challenge its validity. To repeat, this Court, even if denied the fullness of information and the
conceded grasp of the Executive still must adjudicate the matter as best it can. It has to act not by
virtue of its competence but by the force of its commission a function authenticated by history. 13 That
would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of liberty and
equally against the erosion of possible encroachments, whether minute or extensive. 14 Even if there be
no showing then of constitutional infirmity, at least one other branch of the government, that to which such
an awesome duty had been conferred has had the opportunity of reflecting on the matter with
detachment, with objectivity, and with full awareness of the commands of the Constitution as well as the
realities of the situation.

5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by reliance
on the doctrine of political questions. The term has been made applicable to controversies clearly
non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately
subject to its cognizance, as to which there has been a prior legislative or executive determination to
which deference must be paid. 15 It has likewise been employed loosely to characterize a suit where the
party proceeded against is the President or Congress, or any branch thereof. 16 If to be de-limited with
accuracy, "political questions" should refer to such as would under the Constitution be decided by the
people in their sovereign capacity or in regard to which full discretionary authority is vested either in the
Presidency or Congress. It is thus beyond the competence of the judiciary to pass upon. 17 Unless, clearly
falling within the above formulation, the decision reached by the political branches whether in the form of
a congressional act or an executive order could be tested in court. Where private rights are affected, the
judiciary has no choice but to look into its validity. It is not to be lost sight of that such a power comes into
play if there is an appropriate proceeding that may be filed only after either coordinate branch has acted.
Even when the Presidency or Congress possesses plenary power, its improvidence exercise or the abuse
thereof, if shown, may give rise to a justiciable controversy. 18 For the constitutional grant of authority is
not usually unrestricted. There are limits to what may be done and how it is to be accomplished.
Necessarily then, the courts in the proper exercise of judicial review could inquire into the question of
whether or not either of the two coordinate branches has adhered to what is laid down by the Constitution.
The question thus posed is judicial rather than political. So it is in the matter before us so clearly
explained in the opinion of the Chief Justice.
6. The doctrine announced in Montenegro v. Castaeda 19 that such a question is political has thus
been laid to rest. It is about time too. It owed its existence to the compulsion exerted by Barcelon v. Baker,
a 1905 decision. 20 This Court was partly misled by an undue reliance in the latter case on what it
considered to be authoritative pronouncements from such illustrious American jurists as Marshall, Story,
and Taney. That is to misread what was said by them. This is most evidence in the case of Chief Justice
Marshall, whose epochal Marbury v. Madison 21 was cited. Why that was so is difficult to understand. For it
speaks to the contrary. It was by virtue of this decision that the function of judicial review owes its origin
notwithstanding the absence of any explicit provision in the American Constitution empowering the courts
to do so. Thus: "It is emphatically the province and duty of the judicial department to say what the law is.
Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two
laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition
to the constitution: if both the law and the constitution apply to a particular case, so that the court must
either decide that case conformably 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 of judicial duty. If, the, the courts are to regard the constitution, and the
constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act,
must govern the case to which they both apply." 22
Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin v.
Mott, 23 as made clear in the opinion of the Chief Justice, an authority directly in point. There, a militiaman
had been convicted of failing to respond to a call, made under the Act of 1795, to serve during the War of
1812. His property was taken to satisfy the judgment. He brought an action of replevin. The American
Constitution empowers its Congress "to provide for calling forth the Militia" in certain cases, and Congress
did provide that in those cases the President should have authority to make the call. All that Justice Story
did in construing the statute in the light of the language and purpose of her Constitution was to recognize
the authority of the American President to decide whether the exigency has arisen. In stating that such
power was exclusive and thus had a conclusive effect, he relied on the language employed, impressed
with such a character. The constitutional provision on the suspension of the privilege of the writ is, as
shown, anything but that. 24 Chief Justice Taney, in Luther v. Borden, 25 likewise had to deal with a situation
involving the calling out of the militia. As a matter of fact, an eminent commentator speaking of the two
above decisions had this apt observation: "The common element in these opinions would seem to be a
genuine judicial reluctance to speak in a situation where the voice of the Court, even if heard, could not
have any effect. More than this, both Story and Taney seem to share the suspicion, unusual in them, that
under a popular form of government there are certain questions that the political branches must be

trusted to answer with finality." 26 What was said next is even more pertinent. Thus: "It would be
dangerous and misleading to push the principles of these cases too far, especially the doctrine of 'political
questions' as implied in Luther v. Borden. Given the opportunity to afford a grievously injured citizen relief
from a palpably unwarranted use of presidential or military power, especially when the question at issue
falls in the penumbra between the 'political' and the 'justiciable', the Court will act as if it had never heard
of this doctrine and its underlying assumption that there are some powers against which the judiciary
simply cannot be expected to act as the last line of defense." 27 It would thus seem evidence that support
for the hitherto prevailing Montenegro ruling was rather frail. Happily, with our decision, it is no longer
capable of the mischief to which it does lend itself of an undue diminution of judicial power to the
prejudice of constitutional rights.

7. With such presidential determination of the existence of the conditions required by the
Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other
branches, this Court may thus legitimately inquire into its validity. The question before us, it bears
repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is
valid. The starting point must be a recognition that the power to suspend the privilege of the writ
belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be
respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited
then to the ascertainment of whether or not such a suspension, in the light of the credible information
furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for
petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is
not the correctness but the reasonableness of the action taken. One who is not the Executive but
equally knowledgeable may entertain a different view, but the decision rests with the occupant of the
office. As would be immediately apparent even from a cursory perusal of the data furnished the
President, so impressively summarized in the opinion of the Chief Justice, the imputation of
arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where
the suspension operates as well as his instructions attested to a firm resolve on his part to keep
strictly within the bounds of his authority. Under the circumstances, the decision reached by the
Court that no finding of unconstitutionality is warranted commends itself for approval. The most that
can be said is that there was a manifestation of presidential power well-nigh touching the extreme
border of his conceded competence, beyond which a forbidden domain lies. The requisite showing
of either improvidence or abuse has not been made.
8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ partakes
of an executive action which if valid binds all who are within its operations. The function of enacting a
legal norm general in character appertains to either Congress or the President. Its specific
application to particular individuals, like petitioners here, is however a task incumbent on the
judiciary. What is more, as had just been explained, its validity maybe tested in courts. Even if valid,
any one may seek judicial determination as to whether he is embraced within its terms. After our
declaration of the validity of the Proclamation No. 889 as amended, the next question is its
applicability to petitioners. I am the first to recognize the meticulous care with which the Chief
Justice, after reaching the conclusion that petitioners are covered by the suspension, saw to it that
their constitutional rights are duly safeguarded in whatever proceedings they would have thereafter
to face. There is thus as assurance that as far as human foresight can anticipate matters, the
possibility of abuse is minimized.
The matter, for me, could be viewed independently of whether or not petitioners, by the conduct
imputed to them, could be detained further by virtue of the suspension of the privilege of the writ. For
admittedly, a supervening fact, the Executive's determination to have them charged according to the
ordinary procedural rules, did present itself. There was thus introduced an element decisive in its
consequences. They are entitled to treatment no different from that accorded any other individual
facing possible criminal charges. The opinion of the Chief Justice is correct in pointing out that such
an approach follows the dictum of Justice Tuason, speaking for himself in Nava v.

Gatmaitan, 28 where a majority of five, lacking just one vote to enable this Court to reach a binding
decision, did arrive at the conclusion that the suspension of the privilege of the writ does not suspend the
right to bail. Thus: "By the same token, 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 a judicial concern.
Thereupon the corresponding court assumes its role and the judicial process takes its course to the
exclusion of the executive or the legislative departments. Hence forward, the accused is entitled to
demand all the constitutional safeguards and privileges essential to due process." 29 Parenthetically, it
may be observed that the above view reflects the stand taken by Justice Recto, fortified by Justice Laurel,
drawing heavily on continental juristic thought, both of whom, having retired from the bench and thereafter
having been elected to the Senate, were invited to appear as amici curiae in the Nava case.
It would follow to my way of thinking then that the petitioners still detained ought not to be further
deprived of their liberty in the absence of a warrant of arrest for whatever offense they may be held
to answer, to be issued by a judge after a finding of probable cause. That is to comply with the
constitutional requirement against unreasonable search and seizure. 30 Moreover, to keep them in
confinement after the ordinary processes of the law are to be availed of, as thereafter decreed by the
Executive itself is to ignore the safeguard in the Bill of Rights that no person shall be held to answer for a
criminal offense without due process of law. 31 That would explain why with full recognition of the sense of
realism that infuses the opinion of the Court, I cannot, from the above standpoint, reach the same
conclusion they did. These six petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo, David, Gary
Olivar, Angelo de los Reyes and Teresito Sison, have, for me, become immune from the operation of the
proclamation suspending the privilege of the writ ofhabeas corpus and are thus entitled to their liberty. I
am reinforced in my conviction by the well-settled principle of constitutional construction that if there are
two possible modes of interpretation, that one which raises the least constitutional doubt should be
preferred. Certainly, to my way of thinking, the choice is obvious. That interpretation which would throw
the full mantle of protection afforded by the Constitution to those unfortunate enough to be caught in the
meshes of criminal law is more in keeping with the high estate accorded constitutional rights.
There is another consideration that strengthens my conviction on the matter. The language of the
Constitution would seem to imply at the most that the suspension of the privilege of the writ renders
it unavailable for the time being. Still there are authorities sustaining the view that preventive
detention subject to the test of good faith is allowable. 32 Such a doctrine is no doubt partly traceable to
Anglo-American legal history where as pointed out by Maine: "Substantive law has at first the look of
being gradually secreted in the interstices of procedure." 33 The writ of habeas corpus then is more than
just an efficacius device or the most speedy means of obtaining one's liberty. It has become a most
valuable substantive right. It would thus serve the cause of constitutional rights better if the Tuason dictum
as to the judicial process supplanting executive rule the moment charges are filed be accorded
acceptance. Thereby the number of individuals who would have to submit to further detention, that may
well turn out to be unjustified, would be reduced. What is more, greater fidelity is manifested to the
principle that liberty is the rule and restraint the exception.
I am not of course insensible to the observation in the opinion of the Court that this concept could be
an obstacle to the early resumption of the ordinary judicial process as the Executive might be
minded to postpone resort to it, considering that there would necessarily be an end to the detention
at that early stage of individuals who continue to pose risk to the safety of the government. It does
occur to me, however, that the presumption should be that the high executive dignitaries can be
trusted to act in accordance with the dictates of good faith and the command of the Constitution. At
least, such seems to be the case now. The opinion of the Court is quite explicit as to the measures
taken to minimize the possibility of abuse from officials in the lower category, who in their zeal or
even from less worthy motives might make a mockey of the other constitutional rights. That is as it
should be. It should continue to be so even if there be acceptance of the doctrine enunciated by
Justice Tuason. There is, for me at least, no undue cause for pessimism.

These is to my mind another reinforcement to this approach to the question before us, perhaps one
based more on policy rather than strictly legal considerations. The petitioners who have not been
released are youth leaders, who for motives best known to them, perhaps excess of idealism,
impatience with existing conditions, even overweening ambition, clamor for change, apparently
oblivious at times that it could be accomplished through means of which the law does not
disapprove. It would be premature at this stage to say whether or not their activities have incurred for
them a penal sanction, which certainly would be appropriate if their conduct is beyond the pale. Even
they should recognize that the existing order has the right to defendant itself against those who
would destroy it. Nonetheless as a constitutional democracy can justifiably pride itself on its
allegiance to ways of persuasion rather than coercion, the most meticulous observance of the free
way of life seems to me, even at this stage, not without its beneficent influence on their future course
of conduct. This is not by any means to intimate that my brethren view matters differently. Far from it.
Any difference if at all in the positions taken is a question of emphasis. Rightly, the opinion of the
Chief Justice stresses the importance of the rule of law. It is to be hoped that with a proper
understanding of what has been decided by the Court today, there would be a diminution of the
wholesale condemnation of the present system of government by some sectors of the youth and
perhaps even lead to much-needed refinement in the volume and quality of their utterances. It could
even conceivably, not only for them but for others of a less radical cast of mind, but equally suffering
from disenchantment and disillusion, induce a reassessment and reappraisal of their position, even if
from all appearances their commitment and dedication are plain for all to see. More than that, such a
response will go a long way towards a keener appreciation of the merits of a constitutional
democracy. For thereby, it demonstrates that it lives up to its ideas; it strives to act in accordance
with what it professes. Its appeal for all sectors or society becomes strengthened and vitalized. Nor
do I close my eyes to the risk that such an attitude towards those who constitute a source of danger
entails. That for me is not conclusive. With nations, as with ordinary mortals, that is unavoidable.
Repose, in the often-quoted aphorism of Holmes, is not the destiny of man.
9. One last observation. It would appear to me that if there is really a resolve to maintain inviolate
constitutional rights for all, more especially so for those inclined and disposed to differ and to be
vocal, perhaps even intemperate, in their criticism, that serious thought should be given to the
desirability of removing from the President his power to suspend the privilege of the writ of habeas
corpus as well as the power to declare martial law. Nor would the government be lacking in authority
to cope with the crisis of invasion, insurrection, or rebellion or lawless violence, as the President as
commander-in-chief can summon the aid of the armed forces to meet the danger posed to public
safety. If the privilege of the writ cannot be suspended and martial law beyond the power of the
President to declare, there is a greater likelihood as far as the rights of the individual are concerned,
of the Constitution remaining at all times supreme, as it ought to be, whether it be in peace or in war
or under other crisis conditions. As long, however, as such a presidential prerogative exists, it would
not be proper for the courts not to accord recognition to its exercise, if there be observance of the
limitations imposed by the Constitution. At the most, they can only through construction nullify what
would amount to an unconstitutional application. How desirable it would be then, to my way of
thinking, if the Constitution would strip the President of such power. That would be constitutionalism
triumphant. In terms of Lincoln's memorable dilemma, the government would be neither too strong
for the liberties of the people nor too weak to maintain its existence. This is a matter though
appropriately addressed to the Constitutional Convention.
On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason dictum in the
Nava case did result in my inability to concur fully with the opinion of the Chief Justice, which, as
pointed out at the outset, is possessed of a high degree of merit.

EN BANC
PROF. RANDOLF S. DAVID, LORENZO
TAADA III, RONALD LLAMAS, H.
HARRY L. ROQUE, JR., JOEL RUIZ
BUTUYAN, ROGER R. RAYEL, GARY
S.
MALLARI,
ROMEL
REGALADO
BAGARES,
CHRISTOPHER F.C. BOLASTIG,
Petitioners,
- versus GLORIA
MACAPAGALARROYO,
AS
PRESIDENT
AND
COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL DEFENSE,
GENERAL GENEROSO SENGA, CHIEF
OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL
ARTURO
LOMIBAO,
CHIEF,
PHILIPPINE NATIONAL POLICE,
Respondents.
x-------------------------------------------------x
NIEZ
CACHO-OLIVARES
AND
TRIBUNE PUBLISHING CO., INC.,
Petitioners,
- versus -

G.R. No. 171396


Present:
PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JJ.

Promulgated:
May 3, 2006
G.R. No. 171409

HONORABLE SECRETARY EDUARDO


ERMITA
AND
HONORABLE
DIRECTOR GENERAL ARTURO C.
LOMIBAO,
Respondents.
x-------------------------------------------------x
FRANCIS JOSEPH G. ESCUDERO,
JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO,
MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV
S.
HATAMAN,
JUAN
EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE
R. MARCOS, RENATO B. MAGTUBO,
JUSTIN MARC SB. CHIPECO, ROILO
GOLEZ,
DARLENE
ANTONINOCUSTODIO,
LORETTA ANN
P.
ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL,
ANA
THERESIA
HONTIVEROSBARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI
JAVIER COLMENARES, MOVEMENT
OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES REPRESENTED BY
AMADO GAT INCIONG,
Petitioners,
- versus EDUARDO R. ERMITA, EXECUTIVE
SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V.
PUNO,
SECRETARY,
DILG,
GENEROSO SENGA, AFP CHIEF OF
STAFF, ARTURO LOMIBAO, CHIEF

G.R. No. 171485

PNP,
Respondents.
x-------------------------------------------------x
KILUSANG
MAYO
UNO,
REPRESENTED
BY
ITS
CHAIRPERSON ELMER C. LABOG
AND SECRETARY GENERAL JOEL
MAGLUNSOD,
NATIONAL
FEDERATION OF LABOR UNIONS
KILUSANG MAYO UNO (NAFLUKMU),
REPRESENTED
BY
ITS
NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR.,
AND ROQUE M. TAN,
Petitioners,

G.R. No. 171483

- versus HER
EXCELLENCY,
PRESIDENT
GLORIA MACAPAGAL-ARROYO, THE
HONORABLE
EXECUTIVE
SECRETARY, EDUARDO ERMITA,
THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP
DIRECTOR
GENERAL,
ARTURO
LOMIBAO,
Respondents.
x-------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC.
(ALG),
Petitioner,
- versus EXECUTIVE SECRETARY EDUARDO

G.R. No. 171400

R. ERMITA, LT. GEN. GENEROSO


SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
JOSE ANSELMO I. CADIZ, FELICIANO
M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR M. AMORADO, ALICIA A.
RISOS-VIDAL, FELIMON C. ABELITA
III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA,
ROGELIO
V.
GARCIA
AND
INTEGRATED
BAR
OF
THE
PHILIPPINES (IBP),
Petitioners,

G.R. No. 171489

- versus HON.
EXECUTIVE
SECRETARY
EDUARDO
ERMITA,
GENERAL
GENEROSO
SENGA,
IN
HIS
CAPACITY AS AFP CHIEF OF STAFF,
AND DIRECTOR GENERAL ARTURO
LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,
Respondents.
x-------------------------------------------------x
LOREN B. LEGARDA,
Petitioner,
- versus GLORIA MACAPAGAL-ARROYO, IN
HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF;
ARTURO
LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL
OF
THE

G.R. No. 171424

PHILIPPINE
NATIONAL
POLICE
(PNP); GENEROSO SENGA, IN HIS
CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO
ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY,
Respondents.
x---------------------------------------------------------------------------------------------x

DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid
formula are necessary.[1] Superior strength the use of force cannot make
wrongs into rights. In this regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most
relevant. He said: In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak. Laws and actions that restrict
fundamental rights come to the courts with a heavy presumption against their
constitutional validity.[2]
These seven (7) consolidated petitions for certiorari and prohibition allege
that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order
No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in
their professed efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law, without
which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20 th Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of
national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed Forces of the
Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of
the Philippine Constitution which states that: The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . ., and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence
as well as any act of insurrection or rebellion and to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article 12 of
the Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:


WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists
the historical enemies of the democratic Philippine State who are now in
a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State by
obstructing governance including hindering the growth of the economy and
sabotaging the peoples confidence in government and their faith in the
future of this country;

WHEREAS, these actions are adversely affecting the economy;


WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the State the primary
duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to the
safety and the integrity of the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017,


thus:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left, represented by the NDFCPP-NPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State and who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly magnified
by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy and
sabotaging the peoples confidence in the government and their faith in the future
of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme
Left and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense
and preservation of the democratic institutions and the State the primary duty of
Government;

WHEREAS, the activities above-described, their consequences,


ramifications and collateral effects constitute a clear and present danger to the
safety and the integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue
of the powers vested in me under the Constitution as President of the Republic of
the Philippines, and Commander-in-Chief of the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon
the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the
country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as
well as the officers and men of the AFP and PNP, to immediately carry out the
necessary and appropriate actions and measures to suppress and prevent acts
of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of


national emergency and after all these petitions had been filed, the President lifted
PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article
XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), were
directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to
undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed
and quelled the acts lawless violence and rebellion;
NOW,
THEREFORE,
I,
GLORIA
MACAPAGALARROYO, President of the Republic of the Philippines, by virtue of the powers
vested in me by law, herebydeclare that the state of national emergency has
ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5,


respondents stated that the proximate cause behind the executive issuances was the
conspiracy among some military officers, leftist insurgents of the New Peoples
Army (NPA), and some members of the political opposition in a plot to unseat or
assassinate President Arroyo.[4] They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and
G.O. No.
5. Significantly, there was no refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling
out the armed forces. He emphasized that none of the petitioners has shown that
PP 1017 was without factual bases. While he explained that it is not respondents
task to state the facts behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and
First
Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang,
members of the Magdalo Group indicted in the Oakwood mutiny, escaped their
detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to
remain defiant and to elude arrest at all costs. They called upon the people to
show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands
on our left arms. [5]
On February 17, 2006, the authorities got hold of a document entitled
Oplan Hackle I which detailed plans for bombings and attacks during the
Philippine Military Academy Alumni Homecoming in Baguio City. The plot was
to assassinate selected targets including some cabinet members and President
Arroyo herself.[6] Upon the advice of her security, President Arroyo decided not to
attend the Alumni Homecoming. The next day, at the height of the celebration, a
bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist


safehouse in Batangas province. Found in his possession were two (2) flash disks
containing minutes of the meetings between members of the Magdalo Group and
the National Peoples Army (NPA), a tape recorder, audio cassette cartridges,
diskettes, and copies of subversive documents.[7] Prior to his arrest, Lt. San Juan
announced through DZRH that the Magdalos D-Day would be on February 24,
2006, the 20th Anniversary of Edsa I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information
that members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to disavow any defection. The latter promptly obeyed and issued a public
statement: All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty.
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquinos brother, businessmen and mid-level government officials
plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME
Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S.
government official about his groups plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo
Lim, Commander of the Armys elite Scout Ranger. Lim said it was all systems
go for the planned movement against Arroyo.[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided
to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be held on February 24,
2005. According to these two (2) officers, there was no way they could possibly
stop the soldiers because they too, were breaking the chain of command to join the
forces foist to unseat the President. However, Gen. Senga has remained faithful to
his Commander-in-Chief and to the chain of command. He immediately took
custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine
Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary


work within the military and the police establishments in order to forge alliances
with its members and key officials. NPA spokesman Gregorio Ka Roger Rosal
declared: The Communist Party and revolutionary movement and the entire
people look forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it to weaken and
unable to rule that it will not take much longer to end it.[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: Anti-Arroyo
groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field. He claimed
that with the forces of the national democratic movement, the anti-Arroyo
conservative political parties, coalitions, plus the groups that have been reinforcing
since June 2005, it is probable that the Presidents ouster is nearing its concluding
stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers
and cell sites in Bulacan and Bataan was also considered as additional factual basis
for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in
Benguet resulting in the death of three (3) soldiers. And also the directive of the
Communist Party of the Philippines ordering its front organizations to join 5,000
Metro Manila radicals and 25,000 more from the provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the fermenting peace
and order situation. She directed both the AFP and the PNP to account for all their
men and ensure that the chain of command remains solid and undivided. To
protect the young students from any possible trouble that might break loose on the
streets, the President suspended classes in all levels in the entire National Capital
Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all


programs and activities related to the 20 th anniversary celebration of Edsa People
Power I; and revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that political rallies, which to
the Presidents mind were organized for purposes of destabilization, are
cancelled. Presidential Chief of Staff Michael Defensor announced that
warrantless arrests and take-over of facilities, including media, can already be
implemented.[11]
Undeterred by the announcements that rallies and public assemblies would
not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at
the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break
up the marching groups, and scatter the massed participants. The same police
action was used against the protesters marching forward to Cubao, Quezon City
and to the corner of Santolan Street and EDSA. That same evening, hundreds of
riot policemen broke up an EDSA celebration rally held along Ayala Avenue and
Paseo de Roxas Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion, Ronald
Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP
1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding
team confiscated news stories by reporters, documents, pictures, and mock-ups of
the Saturday issue. Policemen from Camp Crame in Quezon City were stationed

inside the editorial and business offices of the newspaper; while policemen from
the Manila Police District were stationed outside the building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and its
sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael
Defensor, is meant to show a strong presence, to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government. The PNP warned that it would take over any media organization
that would not followstandards set by the government during the state of
national emergency. Director General Lomibao stated that if they do not
follow the standards and the standards are - if they would contribute to
instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend a takeover. National
Telecommunications Commissioner Ronald Solis urged television and radio
networks to cooperate with the government for the duration of the state of
national emergency. He asked for balanced reporting from broadcasters when
covering the events surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage when the national security is
threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a
warrant for his arrest dated 1985. Beltrans lawyer explained that the warrant,
which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran,
they were told they could not be admitted because of PP 1017 and G.O. No.
5. Two members were arrested and detained, while the rest were dispersed by the
police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police
went after him during a public forum at the Sulo Hotel in Quezon City. But his
two drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the Orchard Golf
and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador
was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to
the custody of the House of Representatives where the Batasan 5 decided to
stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these
petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state
of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of
PP 1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on
the grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a
subterfuge to avoid the constitutional requirements for the imposition of martial
law; and (3) it violates the constitutional guarantees of freedom of the press, of
speech and of assembly.
In G.R.
No.
171409,
petitioners
Ninez
Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding the Daily
Tribune offices as a clear case of censorship or prior restraint. They also

claimed that the term emergency refers only to tsunami, typhoon, hurricane and
similar occurrences, hence, there is absolutely no emergency that warrants the
issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
usurpation of legislative powers; violation of freedom of expression and a
declaration of martial law. They alleged that President Arroyo gravely
abused her discretion in calling out the armed forces without clear and verifiable
factual basis of the possibility of lawless violence and a showing that there is
necessity to do so.
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate
unto President Arroyo the power to enact laws and decrees; (2) their issuance was
without factual basis; and (3) they violate freedom of expression and the right of
the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section
4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of
Article VI, and (d) Section 17[20] of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an arbitrary and unlawful exercise by the President of her Martial Law
powers. And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that it amounts to an exercise by the President of emergency
powers without congressional approval. In addition, petitioners asserted that PP
1017 goes beyond the nature and function of a proclamation as defined under the
Revised Administrative Code.
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that
PP 1017 and G.O. No. 5 are unconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of the press and the right

to access to information on matters of public concern, all guaranteed under Article


III, Section 4 of the 1987 Constitution. In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before
the Presidential Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered
that: first, the
petitions
should
be
dismissed
for
being
moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et
al.) have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal
basis; and fifth, PP 1017 does not violate the peoples right to free expression and
redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties
on the above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot
and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et
al.),
and 171424(Legarda) have legal standing.
B.
SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of
PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A.

PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is


the concept of judicial review enunciated in Marbury v. Madison.[21] This concept
rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the national
government. x x xIf the government consciously or unconsciously oversteps
these limitations there must be some authority competent to hold it in
control, to thwart its unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the theory of
judicial review.[22]

But the power of judicial review does not repose upon the courts a selfstarting capacity.[23] Courts may exercise such power only when the following
requisites
are
present: first, there
must
be
an
actual
case
or
controversy; second, petitioners
have
to
raise
a
question
of
constitutionality; third, the constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is definite and concrete,
touching the legal relations of parties having adverse legal interest; a real and
substantial controversy admitting of specific relief. [25] The Solicitor General
refutes the existence of such actual case or controversy, contending that the present
petitions were rendered moot and academic by President Arroyos issuance of
PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,[26] so that a declaration thereon would

be of no practical use or value.[27] Generally, courts decline jurisdiction over such


case[28] or dismiss it on ground of mootness.[29]
The Court holds that President Arroyos issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP 1017
was operative, the police officers, according to petitioners, committed illegal acts
in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do
they justify these alleged illegal acts? These are the vital issues that must be
resolved in the present petitions. It must be stressed that an unconstitutional act
is not a law, it confers no rights, it imposes no duties, it affords no protection;
it is in legal contemplation, inoperative.[30]
The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the
Constitution;[31] second, the exceptional character of the situation and the
paramount public interest is involved;[32] third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the
public;[33] and fourth, the case is capable of repetition yet evading review.[34]
All the foregoing exceptions are present here and justify this Courts
assumption of jurisdiction over the instant petitions. Petitioners alleged that the
issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question
that the issues being raised affect the publics interest, involving as they do the
peoples basic rights to freedom of expression, of assembly and of the
press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of
educating the bench and the bar, and in the present petitions, the military and the
police, on the extent of the protection given by constitutional guarantees. [35] And
lastly, respondents contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive
Secretary.[36] However, they failed to take into account the Chief Justices very
statement that an otherwise moot case may still be decided provided the party

raising it in a proper case has been and/or continues to be prejudiced or damaged


as a direct result of its issuance. The present case falls right within this
exception to the mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court
deems it imperative to have a more than passing discussion on legal standing
orlocus standi.
Locus standi is defined as a right of appearance in a court of justice on a
given question.[37] In private suits, standing is governed by the real-parties-in
interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that every action must be prosecuted or
defended in the name of the real party in interest. Accordingly, the realparty-in interest is the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the
suit.[38] Succinctly put, the plaintiffs standing is based on his own right to the
relief sought.
The difficulty of determining locus standi arises in public suits.
Here,
the plaintiff who asserts a public right in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person who
is affected no differently from any other person. He could be suing as a
stranger, or in the category of a citizen, or taxpayer. In either case, he
has to adequately show that he is entitled to seek judicial protection. In other
words, he has to make out a sufficient interest in the vindication of the public order
and the securing of relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,[39] where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme

Court in People ex rel Case v. Collins:[40] In matter of mere public right,


howeverthe people are the real partiesIt is at least the right, if not the duty,
of every citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied. With respect to
taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public
funds to his injury cannot be denied.
However, to prevent just about any person from seeking judicial interference
in any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent direct injury test in Ex Parte
Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People
v. Vera,[44] it held that the person who impugns the validity of a statute must have
a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result. The Vera doctrine was upheld in a litany
of cases, such as, Custodio v. President of the Senate,[45] Manila Race Horse
Trainers Association v. De la Fuente,[46] Pascual v. Secretary of Public
Works[47]and Anti-Chinese League of the Philippines v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This was done
in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[49] where the
transcendental importance of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,[50] this Court resolved to pass upon the issues raised due to the farreaching implications of the petition notwithstanding its categorical statement
that petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens,

members of Congress, and civic organizations to prosecute actions involving the


constitutionality or validity of laws, regulations and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have failed
to show direct injury, they have been allowed to sue under the principle of
transcendental importance. Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled
that the enforcement of the constitutional right to information and
the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus
standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the
Court held that given the transcendental importance of the issues
involved, the Court may relax the standing requirements and
allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that Balikatan 02-01 involves the exercise of Congress
taxing or spending powers, it
reiterated its ruling in Bagong
[55]
Alyansang Makabayan v. Zamora, that in cases of transcendental
importance, the cases must be settled promptly and definitely and
standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and legislators may
be accorded standing to sue, provided that the following requirements are met:
(1)
(2)

the cases involve constitutional issues;


for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;

(3)

for voters, there must be a showing of obvious interest in the


validity of the election law in question;

(4)

for concerned citizens, there must be a showing that the issues


raised are of transcendental importance which must be settled early; and

(5)

for legislators, there must be a claim that the official action


complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Courts


attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status
of Kilosbayan as a peoples organization does not give it the requisite personality
to question the validity of the on-line lottery contract, more so where it does not
raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent
any allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,[57] the Court reiterated the direct injury test with respect to concerned
citizens cases involving constitutional issues. It held that there must be a
showing that the citizen personally suffered some actual or threatened injury
arising from the alleged illegal official act.
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the
petitioners who are members of Congress have standing to sue, as they claim that
the Presidents declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers. As to
petitionersSanlakas, Partido Manggagawa, and Social Justice Society, the Court
declared them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.


The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged direct
injury resulting from illegal arrest and unlawful search committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not
question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or not the
concurrence of Congress is necessary whenever the alarming powers incident to
Martial Law are used. Moreover, it is in the interest of justice that those affected
by PP 1017 can be represented by their Congressmen in bringing to the attention of
the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform,[62] Basco v. Philippine Amusement and Gaming
Corporation,[63] and Taada v. Tuvera,[64] that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of their
members.[65] We take judicial notice of the announcement by the Office of the
President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of
the Integrated Bar of the Philippines (IBP) have no legal standing, having failed to
allege any direct or potential injury which the IBP as an institution or its members
may suffer as a consequence of the issuance of PP No. 1017 and G.O. No.
5. InIntegrated Bar of the Philippines v. Zamora, [66] the Court held that the mere

invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by other groups and the whole
citizenry. However, in view of the transcendental importance of the issue, this
Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations of illegal disbursement of public
funds. The fact that she is a former Senator is of no consequence. She can no
longer sue as a legislator on the allegation that her prerogatives as a lawmaker have
been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her
submission that she has pending electoral protest before the Presidential Electoral
Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017
will affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the standing
rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is the
underlying legal tenet of the liberality doctrine on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question
which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling of
this Court on this very critical matter. The petitions thus call for the application of
the transcendental importance doctrine, a relaxation of the standing
requirements for the petitioners in the PP 1017 cases.
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during his tenure of office or
actual incumbency,[67] may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court

litigations while serving as such. Furthermore, it is important that he be freed


from any form of harassment, hindrance or distraction to enable him to fully attend
to the performance of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and anything which
impairs his usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President is not accountable to
anyone. Like any other official, he remains accountable to the people [68] but he
may be removed from office only in the mode provided by law and that is by
impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
necessary for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
Presidents exercise of his Commander-in-Chief power has reached its distilled
point
from
the
indulgent
days
of Barcelon
v.
[70]
[71]
Baker
and Montenegro v. Castaneda to the volatile era
of Lansang v.
Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v.
Enrile.[74] The tug-of-war always cuts across the line defining political
questions, particularly those questions in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government.[75] Barcelon and Montenegro were in unison in declaring that
the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts. Lansangtook
the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual
bases in order to determine their constitutional sufficiency. From the principle of
separation of powers, it shifted the focus to the system of checks and balances,
under which the President is supreme, x x x only if and when he acts within
the sphere allotted to him by the Basic Law, and
the authority to

determine whether or not he has so acted is vested


in the Judicial
Department, which
in
this
respect,
is,
in
turn,
[76]
constitutionallysupreme. In 1973, the unanimous Court of Lansang was
divided in Aquino v. Enrile.[77] There, the Court was
almost evenly
divided on the issue of whether the validity of the
imposition of
[78]
Martial Law is a political or justiciable question.
Then came Garcia-Padilla v.
Enrile which greatly diluted Lansang. It declared that there is a need to reexamine the latter case, ratiocinating that in times of war or national
emergency, the President must be given absolute control for the very life of the
nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God.[79]
The Integrated Bar of the Philippines v. Zamora [80] -- a recent case most
pertinent to these cases at bar -- echoed a principle similar to Lansang. While the
Court considered the Presidents calling-out power as a discretionary power
solely vested in his wisdom, it stressed that this does not prevent an
examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion. This ruling is mainly a result of the Courts
reliance on Section 1, Article VIII of 1987 Constitution which fortifies the
authority of the courts to determine in an appropriate action the validity of the acts
of the political departments. Under the new definition of judicial power, the
courts are authorized not only to settle actual controversies involving rights
which are legally demandable and enforceable, but also to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
government. The latter part of the authority represents a broadening of judicial
power to enable the courts of justice to review what was before a forbidden
territory, to wit, the discretion of the political departments of the government.
[81]
It speaks of judicial prerogative not only in terms of power but also of duty.
[82]

As to how the Court may inquire into the Presidents exercise of


power, Lansang adopted the test that judicial inquiry can go no further than to
satisfy the Court not that the Presidents decision is correct, but that the

President did not act arbitrarily. Thus, the standard laid down is not correctness,
but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled
that it is incumbent upon the petitioner to show that the Presidents decision
is totally bereft of factual basis and that if he fails, by way of proof, to support
his assertion, then this Court cannot undertake an independent investigation
beyond the pleadings.
Petitioners failed to show that President Arroyos exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor Generals Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with supporting reports
forming part of the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the military, particularly
in the Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security Group
of the Philippine Army showing the growing alliance between the NPA and the
military. Petitioners presented nothing to refute such events. Thus, absent any
contrary allegations, the Court is convinced that the President was justified in
issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what she
believed was lawless violence, invasion or rebellion. However, the exercise of
such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in
times of emergency. A glimpse at the various political theories relating to this
subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In times
of danger to the nation, positive law enacted by the legislature might be inadequate
or even a fatal obstacle to the promptness of action necessary to avert
catastrophe. In these situations, the Crown retained a prerogative power to act
according to discretion for the public good, without the proscription of the law
and sometimes even against it.[84] But Locke recognized that this moral
restraint might not suffice to avoid abuse of prerogative powers. Who shall judge
the need for resorting to the prerogative and how may its abuse be
avoided? Here, Locke readily admitted defeat, suggesting that the people have
no other remedy in this, as in all other cases where they have no judge on
earth, but to appeal to Heaven.[85]
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them disastrous and
make them bring about, at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as strong as to
render it impossible to suspend their operation. Even Sparta allowed its law to
lapse...
If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme lawyer, who
shall silence all the laws and suspend for a moment the sovereign authority. In
such a case, there is no doubt about the general will, and it clear that the peoples
first intention is that the State shall not perish.[86]

Rosseau did not fear the abuse of the emergency dictatorship or supreme
magistracy as he termed it. For him, it would more likely be cheapened by
indiscreet use. He was unwilling to rely upon an appeal to
heaven. Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship.[87]
John Stuart Mill concluded his ardent defense of representative government:
I am far from condemning, in cases of extreme necessity, the assumption of
absolute power in the form of a temporary dictatorship.[88]

Nicollo Machiavellis view of emergency powers, as one element in the


whole scheme of limited government, furnished an ironic contrast to the Lockean
theory of prerogative. He recognized and attempted to bridge this chasm in
democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to
extra constitutional measures; for although they may for a time be beneficial,
yet the precedent is pernicious, for if the practice is once established for good
objects, they will in a little while be disregarded under that pretext but for evil
purposes. Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying it.
[89]

Machiavelli in contrast to Locke, Rosseau and Mill sought to


incorporate into the constitution a regularized system of standby emergency
powers to be invoked with suitable checks and controls in time of national
danger. He attempted forthrightly to meet the problem of combining a capacious
reserve of power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the problem of


response to emergency by constitutional democracies, have employed the doctrine
of constitutional dictatorship.[91] Frederick M. Watkins saw no reason why
absolutism should not be used as a means for the defense of liberal

institutions, provided it serves to protect established institutions from the


danger of permanent injury in a period of temporary emergency and is
followed by a prompt return to the previous forms of political life.[92] He
recognized the two (2) key elements of the problem of emergency governance, as
well as all constitutional governance: increasing administrative powers of the
executive, while at the same time imposing limitation upon that
power.[93] Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: The
period of dictatorship must be relatively shortDictatorship should always be
strictly legitimate in characterFinal authority to determine the need for
dictatorship in any given case must never rest with the dictator
himself[94] and the objective of such an emergency dictatorship should be
strict political conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.


It is a problem of concentrating power in a government where power has
consciously been divided to cope with situations of unprecedented magnitude
and gravity. There must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how long, and to what
end.[96] Friedrich, too, offered criteria for judging the adequacy of any of scheme
of emergency powers, to wit: The emergency executive must be appointed by
constitutional means i.e., he must be legitimate; he should not enjoy power
to determine the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of emergency
action must be the defense of the constitutional order.[97]
[95]

Clinton L. Rossiter, after surveying the history of the employment of


emergency powers in Great Britain, France, Weimar, Germany and the United
States, reverted to a description of a scheme of constitutional dictatorship as
solution to the vexing problems presented by emergency.[98] Like Watkins and
Friedrich, he stated a priori the conditions of success of the constitutional
dictatorship, thus:

1) No general regime or particular institution of constitutional


dictatorship should be initiated unless it is necessary or even indispensable
to the preservation of the State and its constitutional order
2) the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the dictator
3) No government should initiate a constitutional dictatorship
without making specific provisions for its termination
4) all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements
5) no dictatorial institution should be adopted, no right invaded,
no regular procedure altered any more than is absolutely necessary for the
conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect
7) The dictatorship should be carried on by persons representative
of every part of the citizenry interested in the defense of the existing
constitutional order. . .
8) Ultimate responsibility should be maintained for every action
taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man or men
who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted
11) the termination of the crisis must be followed by a complete
return as possible to the political and governmental conditions existing
prior to the initiation of the constitutional dictatorship[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of


emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and he
places great faith in the effectiveness of congressional investigating committees.[100]

Scott and Cotter, in analyzing the above contemporary theories in light of


recent experience, were one in saying that, the suggestion that democracies
surrender the control of government to an authoritarian ruler in time of grave
danger to the nation is not based upon sound constitutional theory. To
appraise emergency power in terms of constitutional dictatorship serves merely to
distort the problem and hinder realistic analysis. It matters not whether the term
dictator is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers.
However used, constitutional dictatorship cannot be divorced from the
implication of suspension of the processes of constitutionalism. Thus, they
favored instead the concept of constitutionalism articulated by Charles H.
McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of this
study, is that formulated by Charles H. McIlwain. While it does not by any means
necessarily exclude some indeterminate limitations upon the substantive powers
of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose
adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers
and substantive limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening of government
but, but rather in the limiting of it; between which there is a great and very
significant difference. In associating constitutionalism with limited as
distinguished from weak government, McIlwain meant government
limited to the orderly procedure of law as opposed to the processes of force.
The two fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the governed.[101]

In the final analysis, the various approaches to emergency of the above


political theorists - from Locks theory of prerogative, to Watkins doctrine
of constitutional dictatorship and, eventually, to McIlwains principle of
constitutionalism --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the

Chief Executive, while insuring that such powers will be exercised with a sense
of political responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters
of a repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice
Jacksons balanced power structure.[102] Executive, legislative, and judicial
powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the monopoly
of power in times of emergency. Each branch is given a role to serve as
limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other
words, in times of emergency, our Constitution reasonably demands that we repose
a certain amount of faith in the basic integrity and wisdom of the Chief Executive
but, at the same time, it obliges him to operate within carefully prescribed
procedural limitations.
a. Facial Challenge
Petitioners contend that PP 1017 is void on its face because of its
overbreadth. They claim that its enforcement encroached on both unprotected
and protected rights under Section 4, Article III of the Constitution and sent a
chilling effect to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed
for testing on their faces statutes in free speech cases, also known under the
American Law as First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech
or even speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,[104] the US

Supreme Court held that we have not recognized an overbreadth doctrine


outside the limited context of the First Amendment (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of
a law that reflects legitimate state interest in maintaining comprehensive control
over harmful, constitutionally unprotected conduct. Undoubtedly, lawless
violence, insurrection and rebellion are considered harmful and
constitutionally unprotected conduct. In Broadrick v. Oklahoma,[105] it was held:
It remains a matter of no little difficulty to determine when a law may
properly be held void on its face and when such summary action is
inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves
from pure speech toward conduct and that conduct even if expressive
falls within the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes


which, by their terms, seek to regulate only spoken words and again, that
overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct.[106] Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state
regulation.

Second, facial invalidation of laws is considered as manifestly strong


medicine, to be used sparingly and only as a last resort, and is generally
disfavored;[107] The reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a law
may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.[108] A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it


marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts
carve away the unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover, challengers to a law
are not permitted to raise the rights of third parties and can only assert their
own interests. In overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates the entire
statute on its face, not merely as applied for so that the overbroad law
becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the chilling; deterrent effect of the overbroad statute
on third parties not courageous enough to bring suit. The Court assumes that an
overbroad laws very existence may cause others not before the court to refrain
from constitutionally protected speech or expression. An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require
the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis
of its actual operation to petitioners, but on the assumption or prediction that its
very existence may cause others not before the Court to refrain from
constitutionally protected speech or expression. In Younger v. Harris,[109] it was
held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put into effect,
is rarely if ever an appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily
results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most


difficult challenge to mount successfully, since the challenger must establish
that there can be no instance when the assailed law may be valid. Here,
petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of


vagueness. This, too, is unwarranted.
Related to the overbreadth doctrine is the void for vagueness
doctrine which holds that a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its
application.[110] It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing on their faces statutes
in free speech cases. And like overbreadth, it is said that a litigant may challenge
a statute on its face only if it isvague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017


Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
by virtue of the power vested upon me by Section 18, Artilce
VII do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any act of insurrection
or rebellion
Second provision:
and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction;

Third provision:

as provided in Section 17, Article XII of the Constitution do


hereby declare a State of National Emergency.
First Provision: Calling-out Power

The first provision pertains to the Presidents calling-out


power. In Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice
Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as
follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual bases of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected with
invasion.
During the suspension of the privilege of the writ, any person thus arrested
or detained shall be judicially charged within three days, otherwise he shall be
released.

grants the President, as Commander-in-Chief, a sequence of graduated


powers. From the most to the least benign, these are: the calling-out power, the
power to suspend the privilege of the writ of habeas corpus, and the power to
declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,[112] the
Court ruled that the only criterion for the exercise of the calling-out power is that
whenever it becomes necessary, the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion. Are these
conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her Offices vast intelligence network, she is in the best position
to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to
aid him in suppressing lawless violence, invasion and rebellion. This involves
ordinary police action. But every act that goes beyond the Presidents calling-out
power is considered illegal or ultra vires. For this reason, a President must be
careful in the exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the
Presidents authority to declare a state of rebellion (in Sanlakas) and the
authority to proclaim a state of national emergency. While President Arroyos
authority to declare a state of rebellion emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force
of an executive order.

President Arroyos declaration of a state of rebellion was merely an act


declaring a status or condition of public moment or interest, a declaration allowed
under Section 4 cited above. Such declaration, in the words of Sanlakas, is

harmless, without legal significance, and deemed not written. In these cases, PP
1017 is more than that. In declaring a state of national emergency, President
Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or
rebellion. She also relied on Section 17, Article XII, a provision on the States
extraordinary power to take over privately-owned public utility and business
affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP 1017 are
its wordings. It is plain therein that what the President invoked was her calling-out
power.
The declaration of Martial Law is a warn[ing] to citizens that the military
power has been called upon by the executive to assist in the maintenance of law
and order, and that, while the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way render more difficult the
restoration of order and the enforcement of law.[113]
In his Statement before the Senate Committee on Justice on March 13,
2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law, said
that of the three powers of the President as Commander-in-Chief, the power to
declare Martial Law poses the most severe threat to civil liberties. It is a strong
medicine which should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of the President for
the purpose of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII,
provides:
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial


Law. It is no more than a call by the President to the armed forces to prevent or
suppress lawless violence. As such, it cannot be used to justify acts that only
under a valid declaration of Martial Law can be done. Its use for any other
purpose is a perversion of its nature and scope, and any act done contrary to its
command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of news
media and agencies and press censorship; and (d) issuance of Presidential Decrees,
are powers which can be exercised by the President as Commander-inChief only where there is a valid declaration of Martial Law or suspension of the
writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration
of Martial Law. It is merely an exercise of President Arroyos calling-out
power for the armed forces to assist her in preventing or suppressing lawless
violence.
Second Provision: Take Care Power
The second provision pertains to the power of the President to ensure that
the laws be faithfully executed. This is based on Section 17, Article VII which
reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed.

As the Executive in whom the executive power is vested, [115] the primary
function of the President is to enforce the laws as well as to formulate policies to
be embodied in existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming office, he is required
to take an oath or affirmation to the effect that as President of the Philippines, he

will, among others, execute its laws. [116] In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the
Commander-in-Chief of all the armed forces of the country,[117] including the
Philippine National Police[118] under the Department of Interior and Local
Government.[119]
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that
PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to
enact laws and decrees in violation of Section 1, Article VI of the Constitution,
which vests the power to enact laws in Congress. They assail the clause to
enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction.
\

Petitioners contention is understandable. A reading of PP 1017 operative


clause shows that it was lifted[120] from Former President Marcos Proclamation
No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief,do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and decrees,
orders and regulations promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction. Upon the other hand, the enabling clause of PP 1017 issued by

President Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction.
Is it within the domain of President Arroyo to promulgate decrees?
PP 1017 states
in
part: to enforce obedience to all the laws and decrees x x x promulgated
by me personally or upon my direction.
The President is granted an Ordinance Power under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987). She may issue any of the
following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a
general or permanent character in implementation or execution of constitutional
or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be promulgated
in proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only concern a
particular officer or office of the Government shall be embodied in memorandum
orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters
relating to internal administration, which the President desires to bring to the
attention of all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in memorandum
circulars.
Sec. 7. General or Special Orders. Acts and commands of the President
in his capacity as Commander-in-Chief of the Armed Forces of the Philippines
shall be issued as general or special orders.

President Arroyos ordinance power is limited to the foregoing issuances.


She cannot issue decrees similar to those issued by Former President Marcos under
PP 1081. Presidential Decrees are laws which are of the same category and
binding force as statutes because they were issued by the President in the exercise
of his legislative power during the period of Martial Law under the 1973
Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as
it grants President Arroyo the authority to promulgate decrees. Legislative
power is peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that [t]he legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House of
Representatives. To be sure, neither Martial Law nor a state of rebellion nor a
state of emergency can justify President Arroyos exercise of legislative power by
issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the
military?
As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to laws, she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and property
relations, laws on obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless
violence.

Third Provision: Power to Take Over


The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all


decrees, orders, and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article XII of
the Constitution do hereby declare a state of national
emergency.

The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience to all the laws and to all decrees x x x but also to act pursuant to the
provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privatelyowned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above


provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any authority or
delegation from Congress, to take over or direct the operation of any privatelyowned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of
the martial law thinking of the 1971 Constitutional Convention. [122] In effect at
the time of its approval was President Marcos Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over
the management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks
and Sewerage Authority, the Philippine National Railways, the Philippine Air
Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful
prosecution by the Government of its effort to contain, solve and end the present
national emergency.

Petitioners, particularly the members of the House of Representatives, claim


that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislatures emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents authority to declare a
state of national emergency and
to exercise emergency powers. To the
first, as elucidated by the Court, Section 18, Article VII grants the President such
power, hence, no legitimate constitutional objection can be raised. But to the
second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in
joint session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such restrictions as
it may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers
not only to war but also to other national emergency. If the intention of the
Framers of our Constitution was to withhold from the President the authority to
declare a state of national emergency pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence of
a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a
state of national emergency. The logical conclusion then is that President
Arroyo could validly declare the existence of a state of national emergency even in
the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a different
matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions of
a constitution which relate to the same subject matter will be construed together
and considered in the light of each other.[123] Considering that Section 17 of Article
XII and Section 23 of Article VI, previously quoted, relate to national emergencies,
they must be read together to determine the limitation of the exercise of emergency
powers.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not reposed
upon it. However, knowing that during grave emergencies, it may not be possible
or practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress
may prescribe.
(4) The emergency powers must be exercised to carry out a national
policy declared by Congress.[124]

Section 17, Article XII must be understood as an aspect of the emergency


powers clause. The taking over of private business affected with public interest is
just another facet of the emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take
over or direct the operation of any privately owned public utility or business
affected with public interest, it refers to Congress, not the President. Now,

whether or not the President may exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law prescribing the reasonable terms
thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it
must be found in some provision of the Constitution. And it is not claimed that
express constitutional language grants this power to the President. The contention
is that presidential power should be implied from the aggregate of his powers
under the Constitution. Particular reliance is placed on provisions in Article II
which say that The executive Power shall be vested in a President . . . .; that
he shall take Care that the Laws be faithfully executed; and that he shall be
Commander-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the Presidents
military power as Commander-in-Chief of the Armed Forces. The Government
attempts to do so by citing a number of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a theater of war. Such cases need
not concern us here. Even though theater of war be an expanding concept,
we cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from
stopping production. This is a job for the nations lawmakers, not for its
military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the President. In the
framework of our Constitution, the Presidents power to see that the laws
are faithfully executed refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks
bad. And the Constitution is neither silent nor equivocal about who shall
make laws which the President is to execute. The first section of the first
article says that All legislative Powers herein granted shall be vested in a
Congress of the United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency under


Section
17,
Article
XII
refers
to
tsunami,
typhoon, hurricane andsimilar occurrences. This is a limited view
of emergency.

Emergency, as a generic term, connotes the existence of conditions suddenly


intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity,
variety, and perception.[127] Emergencies, as perceived by legislature or executive
in the United Sates since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a) economic,[128] b) natural disaster,
[129]
and c) national security.[130]
Emergency, as contemplated in our Constitution, is of the same
breadth. It may include rebellion, economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of nationwide proportions or effect.
[131]
This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of national
emergency which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected with
public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
national emergency.
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.[132]
x

MR. TINGSON. May I ask the committee if national emergency refers


to military national emergency or could this be economic emergency?
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be
able to convene and, therefore, unable to delegate to the President the power to
take over privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative power,
through which extraordinary measures are exercised, remains in Congress even in
times of crisis.
x x x
After all the criticisms that have been made against the efficiency
of the system of the separation of powers, the fact remains that the
Constitution has set up this form of government, with all its defects and
shortcomings, in preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary government
have given notice that they share the faith of other democracy-loving
peoples in this system, with all its faults, as the ideal. The point is, under
this framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how serious. Never in
the history of the United States, the basic features of whose Constitution
have been copied in ours, have specific functions of the legislative branch
of enacting laws been surrendered to another department unless we
regard as legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a total
war, or when it was engaged in a life-and-death struggle to preserve the
Union. The truth is that under our concept of constitutional government,
in times of extreme perils more than in normal circumstances the various
branches, executive, legislative, and judicial, given the ability to act, are
called upon to perform the duties and discharge the responsibilities
committed to them respectively.

Following our interpretation of Section 17, Article XII, invoked by President


Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest
without authority from Congress.

Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take over
privately-owned public utility or business affected with public interest. The
President cannot decide whether exceptional
circumstances exist warranting the
take over of privately-owned
public utility or business affected with public
interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the
types of businesses affected with public interest that should be taken over. In
short, the President has no absolute authority to exercise all the powers of the State
under Section 17, Article VII in the absence of an emergency powers act passed by
Congress.

c. AS APPLIED CHALLENGE
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual are
often not compatible. Our history reveals that in the crucible of conflict, many
rights are curtailed and trampled upon. Here, the right against unreasonable
search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights
suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate direct injury.
In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to celebrate
the 20th Anniversary of People Power I. The arresting officers cited PP 1017 as
basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,
Inc. claimed that on February 25, 2006, the CIDG operatives raided and
ransacked without warrant their office. Three policemen were assigned to guard
their office as a possible source of destabilization. Again, the basis was PP
1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged
that their members were turned away and dispersed when they went to EDSA
and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the direct injuries allegedly suffered by the said petitioners
shows that they resulted from the implementation, pursuant to G.O. No. 5, of PP
1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the
basis of these illegal acts? In general, does the illegal implementation of a law
render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused[135] and may afford an
opportunity for abuse in the manner of application.[136] The validity of a statute
or ordinance is to be determined from its general purpose and its efficiency to
accomplish the end desired, not from its effects in a particular case.[137] PP 1017
is merely an invocation of the Presidents calling-out power. Its general purpose
is to command the AFP to suppress all forms of lawless violence, invasion or
rebellion. It had accomplished the end desired which prompted President Arroyo
to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate the citizens constitutional
rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the


ground that its implementor committed illegal acts? The answer is no. The
criterion by which the validity of the statute or ordinance is to be measured is the
essential basis for the exercise of power, and not a mere incidental result arising
from its exertion.[138] This is logical. Just imagine the absurdity of situations when
laws maybe declared unconstitutional just because the officers implementing them
have acted arbitrarily. If this were so, judging from the blunders committed by
policemen in the cases passed upon by the Court, majority of the provisions of the
Revised Penal Code would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines. They are internal
rules issued by the executive officer to his subordinates precisely for
the proper andefficient administration of law. Such rules and regulations create
no relation except between the official who issues them and the official who
receives them.[139] They are based on and are the product of, a relationship in which
power is their source, and obedience, their object.[140] For these reasons, one
requirement for these rules to be valid is that they must be reasonable, not
arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence.
Unlike the term lawless violence which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with invasion,
insurrection or rebellion, the phrase acts of terrorism is still an amorphous
and vague concept. Congress has yet to enact a law defining and punishing acts of
terrorism.

In fact, this definitional predicament or the absence of an agreed


definition of terrorism confronts not only our country, but the
international community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the fight against
terrorism has become one of the basic slogans when it comes to the justification
of the use of force against certain states and against groups operating
internationally. Lists of states sponsoring terrorism and of terrorist
organizations are set up and constantly being updated according to criteria that are
not always known to the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions or threats of the
use of force as the most recent by the United States against Iraq consists in the
absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts
of violence either by states, by armed groups such as liberation movements, or by
individuals.
The dilemma can by summarized in the saying One countrys terrorist
is another countrys freedom fighter. The apparent contradiction or lack of
consistency in the use of the term terrorism may further be demonstrated by
the historical fact that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected
statesmen.
What, then, is the defining criterion for terrorist acts the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been
trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to bridge the
gap between those who associate terrorism with any violent act by non-state
groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of force
when resistance against foreign occupation or against systematic oppression of
ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and movements such
as Palestine Liberation Organization (PLO) which is a terrorist group for Israel
and a liberation movement for Arabs and Muslims the Kashmiri resistance

groups who are terrorists in the perception of India, liberation fighters in that of
Pakistan the earlier Contras in Nicaragua freedom fighters for the United
States, terrorists for the Socialist camp or, most drastically, the Afghani
Mujahedeen (later to become the Taliban movement): during the Cold War period
they were a group of freedom fighters for the West, nurtured by the United States,
and a terrorist gang for the Soviet Union. One could go on and on in enumerating
examples of conflicting categorizations that cannot be reconciled in any way
because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions
and evaluations of one and the same group and its actions be explained? In our
analysis, the basic reason for these striking inconsistencies lies in the divergent
interest of states. Depending on whether a state is in the position of an occupying
power or in that of a rival, or adversary, of an occupying power in a given
territory, the definition of terrorism will fluctuate accordingly. A state may
eventually see itself as protector of the rights of a certain ethnic group outside its
territory and will therefore speak of a liberation struggle, not of terrorism
when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on
the definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular armed
movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom
fighter dichotomy. A policy of double standards on this vital issue of
international affairs has been the unavoidable consequence.
This definitional predicament of an organization consisting of
sovereign states and not of peoples, in spite of the emphasis in the Preamble to
the United Nations Charter! has become even more serious in the present global
power constellation: one superpower exercises the decisive role in the Security
Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute
since the terrorist attacks of 11 September 2001 I the United States.[141]

The absence of a law defining acts of terrorism may result in abuse and
oppression on the part of the police or military. An illustration is when a group of
persons are merely engaged in a drinking spree. Yet the military or the police may
consider the act as an act of terrorism and immediately arrest them pursuant to
G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining
the same as such and imposing the corresponding penalty thereon.

So far, the word terrorism appears only once in our criminal laws, i.e., in
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during the
Martial Law regime. This decree is entitled Codifying The Various Laws on
Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations. The word terrorism is mentioned in the following
provision: That one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5,
1985. These two (2) laws, however, do not define acts of terrorism. Since
there is no law defining acts of terrorism, it is President Arroyo alone, under
G.O. No. 5, who has the discretion to determine what acts constitute
terrorism. Her
judgment
on
this
aspect
is
absolute,
without
restrictions. Consequently, there can be indiscriminate arrest without warrants,
breaking into offices and residences, taking over the media enterprises, prohibition
and dispersal of all assemblies and gatherings unfriendly to the administration. All
these can be effected in the name of G.O. No. 5. These acts go far beyond the
calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the acts of terrorism portion of
G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or


police to commit acts beyond what are necessary and appropriate to suppress
and prevent lawless violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and seizure of
whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized. [142] The plain import
of the language of the Constitution is that searches, seizures and arrests
are normallyunreasonable unless authorized by a validly issued search warrant or
warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue search warrants or warrants of arrest.
[143]

In the Brief Account[144] submitted by petitioner David, certain facts are


established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a
criminal suspect; fourth, he was treated brusquely by policemen who held his
head and tried to push him inside an unmarked car; fifth, he was charged with
Violation ofBatas Pambansa Bilang
No. 880[145] and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh, he
was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it; and
x

x.

Neither of the two (2) exceptions mentioned above justifies petitioner


Davids warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the
invective Oust Gloria Now and their erroneous assumption that petitioner
David was the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered
his immediate release on the ground of insufficiency of evidence. He noted that
petitioner David was not wearing the subject t-shirt and even if he was wearing it,
such fact is insufficient to charge him with inciting to sedition. Further, he also
stated that there is insufficient evidence for the charge of violation of BP 880 as it
was not even known whether petitioner David was the leader of the rally.[147]

But what made it doubly worse for petitioners David et al. is that not only
was their right against warrantless arrest violated, but also their right to peaceably
assemble.

Section 4 of Article III guarantees:


No law shall be passed abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.

Assembly means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that Congress has a
right to prevent. In other words, like other rights embraced in the freedom of
expression, the right to assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of such place, and not for
the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing any
crime, neither was there a showing of a clear and present danger that warranted the
limitation of that right. As can be gleaned from circumstances, the charges
ofinciting to sedition and violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting officers
conduct. In De Jonge v. Oregon,[148] it was held that peaceable assembly cannot be
made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed. Those
who assist in the conduct of such meetings cannot be branded as criminals on that
score. The question, if the rights of free speech and peaceful assembly are not to
be preserved, is not as to the auspices under which the meeting was held but as to
its purpose; not as to the relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution protects. If
the persons assembling have committed crimes elsewhere, if they have formed or
are engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and a lawful
public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483) unwarranted.
Apparently, their dispersal was done merely on the basis of Malacaangs
directive canceling all permits previously issued by local government units. This is
arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of
the principle that freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the
State has a right to prevent.[149] Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a clear and present
danger that the State may deny the citizens right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation
of permits, the distinction between protected and unprotected assemblies was
eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is


lodged with the local government units. They have the power to issue permits and
to revoke such permits after due notice and hearing on the determination of the
presence of clear and present danger. Here, petitioners were not even notified and
heard on the revocation of their permits.[150] The first time they learned of it was at
the time of the dispersal. Such absence of notice is a fatal defect. When a
persons right is restricted by government action, it behooves a democratic
government to see to it that the restriction is fair, reasonable, and according to
procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom


of speech i.e., the freedom of the press. Petitioners narration of facts, which the
Solicitor General failed to refute, established the following: first, the Daily
Tribunes offices were searched without warrant; second, the police operatives
seized several materials for publication; third, the search was conducted at about
1:00 o clock in the morning of February 25, 2006; fourth, the search was
conducted in the absence of any official of the Daily Tribune except the security

guard of the building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribuneoffices.
Thereafter, a wave of warning came from government officials. Presidential
Chief of Staff Michael Defensor was quoted as saying that such raid was meant
to show a strong presence, to tell media outlets not to connive or do
anything that would help the rebels in bringing down this
government. Director General Lomibao further stated that if they do not
follow the standards and the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend
a takeover. National Telecommunications Commissioner Ronald Solis urged
television and radio networks to cooperate with the government for the
duration of the state of national emergency. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules
set out for media coverage during times when the national security is
threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure
lays down the steps in the conduct of search and seizure. Section 4 requires that
asearch warrant be issued upon probable cause in connection with one specific
offence to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce. Section
8 mandates that the search of a house, room, or any other premise be made in the
presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the warrant
must direct that it be served in the daytime, unless the property is on the person or
in the place ordered to be searched, in which case a direction may be inserted that
it be served at any time of the day or night. All these rules were violated by the
CIDG operatives.

Not only that, the search violated petitioners freedom of the press. The
best gauge of a free and democratic society rests in the degree of freedom enjoyed
by its media. In the Burgos v. Chief of Staff[152] this Court held that -As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the fundamental law,
and constitutes a virtual denial of petitioners' freedom to express themselves
in print. This state of being is patently anathematic to a democratic
framework where a free, alert and even militant press is essential for the
political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the
Metropolitan Mail and We Forum newspapers in the above case, yet it
cannot be denied that the CIDG operatives exceeded their enforcement duties. The
search and seizure of materials for publication, the stationing of policemen in the
vicinity of the The Daily Tribune offices, and the arrogant warning of government
officials to media, are plain censorship. It is that officious functionary of the
repressive government who tells the citizen that he may speak only if allowed to do
so, and no more and no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was
subjected to these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a constitutional
right even if it involves the most defiant of our citizens. Freedom to comment on
public affairs is essential to the vitality of a representative democracy. It is the
duty of the courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto should always be obsta
principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that
the search of the Tribunes offices and the seizure of its materials for publication

and other papers are illegal; and that the same are inadmissible for any purpose,
thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said
that the policemen, when inspected the Tribune for the
purpose of gathering evidence and you admitted that the
policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were
taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally
seized, I think and I know, Your Honor, and these are
inadmissible for any purpose.[155]
xxx

xxx

xxx

SR. ASSO. JUSTICE PUNO:


These have been published in the past issues of the Daily
Tribune; all you have to do is to get those past issues. So
why do you have to go there at 1 oclock in the morning
and without any search warrant? Did they become
suddenly part of the evidence of rebellion or inciting to
sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon
my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is
not based on any law, and it is not based on Proclamation
1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because
there is nothing in 1017 which says that the police could go
and inspect and gather clippings from Daily Tribune or any
other newspaper.

SR. ASSO. JUSTICE PUNO:


Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I
dont know if it is premature to say this, we do not
condone this. If the people who have been injured by
this would want to sue them, they can sue and there are
remedies for this.[156]

Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in
your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the
supposed illegal or unlawful acts committed on the occasion of
1017, as I said, it cannot be condoned. You cannot blame the
President for, as you said, a misapplication of the law. These are
acts of the police officers, that is their responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and should result in no constitutional or statutory
breaches if applied according to their letter.
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to reiterate
that PP 1017 is limited to the calling out by the President of the military to prevent
or suppress lawless violence, invasion or rebellion. When in implementing its
provisions, pursuant to G.O. No. 5, the military and the police committed acts
which violate the citizens rights under the Constitution, this Court has to declare
such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring
opinion, attached hereto, is considered an integral part of this ponencia.

S U M M AT I O N
In sum, the lifting of PP 1017 through the issuance of PP 1021 a
supervening event would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee that PP
1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed if
the May 1 rallies become unruly and violent. Consequently, the
transcendental issues raised by the parties should not be evaded; they must now
be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP 1017s
extraneous provisions giving the President express or implied power (1) to issue
decrees; (2) to direct the AFP to enforce obedience to all laws even those not
related to lawless violence as well as decrees promulgated by the President; and (3)
to impose standards on media or any form of prior restraint on the press, are ultra

vires andunconstitutional. The Court also rules that under Section 17, Article XII
of the Constitution, the President, in the absence of a legislation, cannot take over
privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by
the President acting as Commander-in-Chief addressed to subalterns in the
AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid
standard that the military and the police should take only the necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence. But the words acts of terrorism found in G.O. No. 5 have not
been legally defined and made punishable by Congress and should thus be deemed
deleted from the said G.O. While terrorism has been denounced generally in
media, no law has been enacted to guide the military, and eventually the courts, to
determine the limits of the AFPs authority in carrying out this portion of G.O.
No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU
and NAFLU-KMU members; (3) the imposition of standards on media or any prior
restraint on the press; and (4) the warrantless search of the Tribune offices and the
whimsical seizures of some articles for publication and other materials, are not
authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day in
court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due process
bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.

It is well to remember that military power is a means to an end and


substantive civil rights are ends in themselves. How to give the military the
power it needs to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a democratic
state. During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our
peoples liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied
the various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two vital
principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.[158]
WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to enforce
laws not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in PP
1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize the
President to take over privately-owned public utility or business affected with
public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which


the AFP and the PNP should implement PP 1017, i.e. whatever is necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence. Considering that acts of terrorism have not yet been defined and

made punishable by the Legislature, such portion of G.O. No. 5 is


declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal
and warrantless arrest of the KMU and NAFLU-KMU members during their
rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press, as
well as the warrantless search of the Tribune offices and whimsical seizure of its
articles
for
publication
and
other
materials,
are
declared UNCONSTITUTIONAL.
No costs.

SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(On leave)
REYNATO S. PUNO
Associate Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

ROMEO J. CALLEJO, SR.


Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CANCIO C. GARCIA
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

*
[1]

[2]
[3]

[4]
[5]
[6]
[7]

On leave.
Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark Lecturer, Volume XIX, 1971, p.
29.
Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.
Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who propounded
universal impermanence and that all things, notably opposites are interrelated.
Respondents Comment dated March 6, 2006.
Ibid.
Ibid.
Minutes of the Intelligence Report and Security Group, Philippine Army, Annex I of Respondents
Consolidated Comment.

[8]

Respondents Consolidated Comment.

[9]

Ibid.

[10]

Ibid.

[11]

Petition in G.R. No. 171396, p. 5.

[12]

Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed were
broadcast as breaking news by the major television stations of this country.

[13]

Petition in G.R. No. 171400, p. 11.

[14]

Ibid.

[15]

The prime duty of the Government is to serve and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided
by law, to render personal military or civil service.

[16]

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.

[17]

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.

[18]

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the Government for redress of grievances.

[19]

(1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall
have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.

[20]

[21]

In times of national emergency, when the public interest so requires, the State may, during the emergency and
under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest.
1 Cranch 137 [1803].

[22]

Howard L. MacBain, Some Aspects of Judicial Review, Bacon Lectures on the Constitution of the United
States (Boston: Boston University Heffernan Press, 1939), pp. 376-77.

[23]

The Court has no self-starting capacity and must await the action of some litigant so aggrieved as to have a
justiciable case. (Shapiro and Tresolini, American Constitutional Law, Sixth Edition, 1983, p. 79).

[24]

Cruz, Philippine Political Law, 2002 Ed., p. 259.

[25]

Ibid.

[26]

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

[27]

Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA
129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91; and Paloma v. Court
of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590.

[28]

Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA
21; Vda. De Dabao v. Court of Appeals, supra.

[29]

Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.

[30]

Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425.

[31]

Province of Batangas v. Romulo, supra.

[32]

Lacson v. Perez, supra.

[33]

Province of Batangas v. Romulo, supra.

[34]

Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona,
Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary,
G.R. No. 159085,
February 3, 2004, 421 SCRA 656.

[35]

Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.

[36]

G.R. No. 159085, February 3, 2004, 421 SCRA 656.

[37]

Blacks Law Dictionary, 6th Ed. 1991, p. 941.

[38]

Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).

[39]

275 Ky 91, 120 SW2d 765 (1938).

[40]

19 Wend. 56 (1837).

[41]

232 NC 48, 59 SE2d 359 (1950).

[42]

302 U.S. 633.

[43]

318 U.S. 446.

[44]

65 Phil. 56 (1937).

[45]

G.R. No. 117, November 7, 1945 (Unreported).

[46]

G.R. No. 2947, January 11, 1959 (Unreported).

[47]

110 Phil. 331 (1960).

[48]

77 Phil. 1012 (1947).

[49]

[50]
[51]

84 Phil. 368 (1949) The Court held: Above all, the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.
L-No. 40004, January 31, 1975, 62 SCRA 275.
Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the
question is one of public duty and the enforcement of a public right, the people are the real party in interest, and
it is sufficient that the petitioner is a citizen interested in the execution of the law;
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court
held that in cases involving an assertion of a public right, the requirement of personal interest is satisfied by the
mere fact that the petitioner is a citizen and part of the general public which possesses the right.
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988,
163 SCRA 371, where the Court held that objections to taxpayers lack of personality to sue may be
disregarded in determining the validity of the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no
expenditure of public funds was involved under the questioned contract, nonetheless considering its important
role in the economic development of the country and the magnitude of the financial consideration involved,
public interest was definitely involved and this clothed petitioner with the legal personality under the disclosure
provision of the Constitution to question it.
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742,
July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking, not covered by
the definition of a proper party, nonetheless, it has the discretion to waive the requirement, in determining
the validity of the implementation of the CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that
it enjoys the open discretion to entertain taxpayers suit or not and that a member of the Senate has the
requisite personality to bring a suit where a constitutional issue is raised.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that
petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved, pertains to illegal
expenditure of public money;
Osmea v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where the
Court held that where serious constitutional questions are involved, the transcendental importance to the
public of the cases involved demands that they be settled promptly and definitely, brushing aside technicalities
of procedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the
importance of the issues involved concerning as it does the political exercise of qualified voters affected by the
apportionment, necessitates the brushing aside of the procedural requirement of locus standi.

[52]

G.R. No. 133250, July 9, 2002, 384 SCRA 152.

[53]

G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.

[54]

G.R. No. 151445, April 11, 2002, 380 SCRA 739.

[55]

Supra.

[56]

G.R. No. 118910, November 16, 1995, 250 SCRA 130.

[57]

G.R. No. 132922, April 21, 1998, 289 SCRA 337.

[58]

G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.

[59]

G.R. No. 159085, February 3, 2004, 421 SCRA 656.

[60]

235 SCRA 506 (1994).

[61]

Supra.

[62]

Supra.

[63]

197 SCRA 52, 60 (1991).

[64]

Supra.

[65]

See NAACP v. Alabama, 357 U.S. 449 (1958).

[66]

G.R. No. 141284, August 15, 2000, 338 SCRA 81.

[67]

From the deliberations of the Constitutional Commission, the intent of the framers is clear that the immunity of
the President from suit is concurrent only with his tenure and not his term. (De Leon, Philippine Constitutional
Law, Vol. 2, 2004 Ed., p. 302).

[68]

Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers
and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice, and lead modest lives.

[69]

Ibid., Sec. 2.

[70]

No. 2908, September 30, 2005, 471 SCRA 87.

[71]

91 Phil. 882 (1952).

[72]

No. L-33964, December 11, 1971, 42 SCRA 448.

[73]

No. L-35546, September 17, 1974, 59 SCRA 183.

[74]

No. L-61388, April 20, 1983, 121 SCRA 472.

[75]

Taada v. Cuenco, 103 Phil. 1051 (1957).

[76]

Lansang v. Garcia, supra, pp. 473 and 481.

[77]

Supra.

[78]

Five Justices Antonio, Makasiar, Esguerra, Fernandez, and Aquino took the position that the proclamation of
martial law and the arrest and detention orders accompanying the proclamation posed a political question beyond
the jurisdiction of the Court. Justice Antonio, in a separate opinion concurred in by Makasiar, Fernandez, and
Aquino, argued that the Constitution had deliberately set up a strong presidency and had concentrated powers in times
of emergency in the hands of the President and had given him broad authority and discretion which the Court was
bound to respect. He made reference to the decision in Lansang v. Garcia but read it as in effect upholding the
political question position. Fernandez, in a separate opinion, also argued Lansang, even understood as giving a
narrow scope of review authority to the Court, affirmed the impossible task of checking the action taken by the
President. Hence, he advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the abandonment
of Lansang and a return to Barcelon. And, although Justices Castro, Fernando, Muoz- Palma, and, implicitly,
Teehankee, lined up on the side of justiciability as enunciated in Lansang, x x x Barredo, however, wanted to have
the best of both worlds and opted for the view that political questions are not per se beyond the Courts jurisdiction
... but that as a matter of policy implicit in the Constitution itself the Court should abstain from interfering with the
Executives Proclamation. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996
Edition, p. 794.)

[79]

See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra.

[80]

Supra.

[81]

Cruz, Philippine Political Law, 2002 Ed., p. 247.

[82]

Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.

[83]

Supra, 481-482.

[84]

Smith and Cotter, Powers of the President during Crises, 1972, p. 6.

[85]

Ibid.

[86]

The Social Contract (New York: Dutton, 1950), pp. 123-124.

[87]

Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.

[88]

Representative Government, New York, Dutton, 1950, pp. 274, 277-78.

[89]

The Discourses, Bk. 1, Ch. XXXIV.

[90]

Smith and Cotter, Powers of the President During Crises, 1972. p. 8.

[91]

Ibid.

[92]

See The Problem of Constitutional Dictatorship, p. 328.

[93]

Ibid., p. 353.

[94]

Ibid., pp. 338-341.

[95]

Smith and Cotter, Powers of the President During Crises, 1972, p. 9.

[96]

Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co., 1949, p. 580.

[97]

Ibid, pp. 574-584.

[98]

Smith and Cotter, Powers of the President During Crises, 1972, p. 10.

[99]

Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp. 298-306.

[100]

Smith and Cotter, Powers of the President During Crises, 1972, p. 11.

[101]

Smith and Cotter, Powers of the President During Crises, 1972, p. 12.

[102]

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952), See
Concurring Opinion J. Jackson.

[103]

See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148560, November 19,
2001, 369 SCRA 393.

[104]

481 U.S. 739, 95 L. Ed. 2d 697 (1987).

[105]

Supra.

[106]

See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra.

[107]

Broadrick v. Oklahoma, 413 U.S. 601 (1973).

[108]
[109]

[110]

Ibid.
401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524
(1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).
Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July 31, 1967, 20
SCRA 849 (1967).

[111]

G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained President Arroyos
declaration of a state of rebellion pursuant to her calling-out power.

[112]

Supra.

[113]

Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted in Aquino v. Ponce
Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)].

[114]

Retired Associate Justice of the Supreme Court.

[115]

Section 1, Article VII of the Constitution.

[116]

Section 5, Article VII of the Constitution.

[117]

Section 18, Article VII of the Constitution.

[118]

Section 6, Article XVI of the Constitution.

[119]

See Republic Act No. 6975.

[120]

[121]

[122]

Ironically, even the 7th Whereas Clause of PP 1017 which states that Article 2, Section 4 of our
Constitution makes the defense and preservation of the democratic institutions and the State the primary
duty of Government replicates more closely Section 2, Article 2 of the 1973 Constitution than Section 4,
Article 2 of the 1987 Constitution which provides that, [t[he prime duty of the Government is to serve and
protect the people.
Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115 SCRA
418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra.
Section 17, Article XIV of the 1973 Constitution reads: In times of national emergency when the public
interest so requires, the State may temporarily take over or direct the operation of any privately owned public
utility or business affected with public interest.

[123]

Antieau, Constitutional Construction, 1982, p.21.

[124]

Cruz, Philippine Political Law, 1998, p. 94.

[125]

343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).

[126]

Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257.

[127]

Smith and Cotter, Powers of the President During Crises, 1972, p. 14

[128]

The Federal Emergency Relief Act of 1933 opened with a declaration that the economic depression created a serious
emergency, due to wide-spread unemployment and the inadequacy of State and local relief funds, . . . making it imperative
that the Federal Government cooperate more effectively with the several States and Territories and the District of Columbia
in furnishing relief to their needy and distressed people. President Roosevelt in declaring a bank holiday a few days after
taking office in 1933 proclaimed that heavy and unwarranted withdrawals of gold and currency from banking
institutions for the purpose of hoarding; ... resulting in sever drains on the Nations stocks of gold have created a
national emergency, requiring his action. Enacted within months after Japans attack on Pearl Harbor, the Emergency
Price Control Act of 1942 was designed to prevent economic dislocations from endangering the national defense and
security and the effective prosecution of the war. (Smith and Cotter, Powers of the President During Crises, 1972, p.18)

[129]

The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency and necessity for relief in
stricken agricultural areas and in another section referred to the present drought emergency.[129] The India Emergency
Food Aid Act of 1951 provided for emergency shipments of food to India to meet famine conditions then ravaging the great
Asian sub-continent. The Communication Act of 1934 and its 1951 amendment grant the President certain powers in time of
public peril or disaster. The other statutes provide for existing or anticipated emergencies attributable to earthquake,
flood, tornado, cyclone, hurricane, conflagration an landslides. [129] There is also a Joint Resolution of April 1937. It made
funds available for the control of incipient or emergency outbreaks of insect pests or plant diseases, including
grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2 [a]) Supra.

[130]

National Security may be cataloged under the heads of (1) Neutrality, (2) Defense, (3) Civil Defense, and (4) Hostilities or
War. (p. 22) The Federal Civil Defense Act of 1950 contemplated an attack or series of attacks by an enemy of the United
States which conceivably would cause substantial damage or injury to civilian property or persons in the United States by
any one of several means; sabotage, the use of bombs, shellfire, or atomic, radiological, chemical, bacteriological means or
other weapons or processes. Such an occurrence would cause a National Emergency for Civil Defense Purposes, or a
state of civil defense emergency, during the term which the Civil Defense Administrator would have recourse to
extraordinary powers outlined in the Act. The New York-New Jersey Civil Defense Compact supplies an illustration in this
context for emergency cooperation. Emergency as used in this compact shall mean and include invasion, or
other hostile action, disaster, insurrection or imminent danger thereof. ( Id., p.15-16)

[131]

Cruz, Philippine Political Law, 1998, p. 95.

[132]

Record of the Constitutional Commission, Vol. III, pp. 266-267.

[133]

Record of the Constitutional Convention, pp. 648-649.

[134]
[135]
[136]

84 Phil. 368 (1949).


Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, cert den 280 US 610,
74 L ed 653, 50 S Ct 158.

[137]

Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309, 105 NE 548.

[138]

Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.

[139]

De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.

[140]

Ibid.

[141]

In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series, Hans
Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the International
Progress Organization, speaking on The United Nations, The International Rule of Law and Terrorism
cited in the Dissenting Opinion of Justice Kapunan in Lim v. Executive Secretary, G.R. No. 151445, April 11,
2002, 380 SCRA 739.
Section 2, Article III of the 1987 Constitution.

[142]
[143]

Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer, p. 51.

[144]

Annex A of the Memorandum in G.R. No. 171396, pp. 271-273.

[145]

An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition the
Government for Other Purposes.

[146]

Annex A of the Memorandum in G.R. No. 171396, pp. 271-273.

[147]

Ibid.

[148]

299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.

[149]

Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.

[150]

Section 5. Application requirements - All applications for a permit shall comply with the following guidelines:
x

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

[151]

Petition in G.R. No. 171400, p. 11.

[152]

No. L-64161, December 26, 1984, 133 SCRA 816.

[153]

[154]
[155]
[156]
[157]
[158]

Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. 102653, 102925 &
102983, March 5, 1992, 207 SCRA 1.
Boyd v. United States, 116 U.S. 616 (1886).
Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.
Ibid., pp. 432-433.
Ibid, pp. 507-508.
Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.

EN BANC

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.


RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of
a temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine
Marines (the Marines) to join the Philippine National Police (the PNP) in visibility patrols
around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive, ordered
the PNP and the Marines to conduct joint visibility patrols for the purpose of crime
prevention and suppression. The Secretary of National Defense, the Chief of Staff of the
Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of
the Interior and Local Government were tasked to execute and implement the said
order. In compliance with the presidential mandate, the PNP Chief, through Police Chief

Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000 [1] (the LOI)
which detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the
leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of
the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff
of the AFP and the PNP Chief.[3] In the Memorandum, the President expressed his
desire to improve the peace and order situation in Metro Manila through a more
effective crime prevention program including increased police patrols. [4] The President
further stated that to heighten police visibility in the metropolis, augmentation from the
AFP is necessary.[5] Invoking his powers as Commander-in-Chief under Section 18,
Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP
Chief to coordinate with each other for the proper deployment and utilization of the
Marines to assist the PNP in preventing or suppressing criminal or lawless violence.
[6]
Finally, the President declared that the services of the Marines in the anti-crime
campaign are merely temporary in nature and for a reasonable period only, until such
time when the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:
xxx

2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and
the Philippine Marines partnership in the conduct of visibility patrols in Metro
Manila for the suppression of crime prevention and other serious threats to
national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active
and former police/military personnel whose training, skill, discipline and
firepower prove well-above the present capability of the local police alone to
handle. The deployment of a joint PNP NCRPO-Philippine Marines in the
conduct of police visibility patrol in urban areas will reduce the incidence of
crimes specially those perpetrated by active or former police/military
personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through

a sustained street patrolling to minimize or eradicate all forms of high-profile


crimes especially those perpetrated by organized crime syndicates whose
members include those that are well-trained, disciplined and well-armed
active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National
Capital Regional Police Office] and the Philippine Marines to curb criminality
in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national security, although the primary
responsibility over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms
of high-profile crimes perpetrated by organized crime syndicates operating in
Metro Manila. This concept requires the military and police to work cohesively
and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police
aside from neutralizing crime syndicates is to bring a wholesome atmosphere
wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local
Police Units are responsible for the maintenance of peace and order in their
locality.
c. To ensure the effective implementation of this project, a provisional Task
Force TULUNGAN shall be organized to provide the mechanism, structure,
and procedures for the integrated planning, coordinating, monitoring and
assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport. [9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines,
null and void and unconstitutional, arguing that:
I

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS


VIOLATIVE OF THE CONSTITUTION, IN THAT:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD


JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS
FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY
THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF
THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY
ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.
II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE


ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions the
validity of the deployment and utilization of the Marines to assist the PNP in law
enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner has no
legal standing; that the question of deployment of the Marines is not proper for judicial
scrutiny since the same involves a political question; that the organization and conduct
of police visibility patrols, which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian supremacy clause in the
Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the Presidents factual determination of the necessity of
calling the armed forces is subject to judicial review; and, (3) Whether or not the calling
of the armed forces to assist the PNP in joint visibility patrols violates the
constitutionalprovisions on civilian supremacy over the military and the civilian character
of the PNP.
The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the requisites of


standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution,
to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is pleaded
at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.
[12]

The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged. [13] The term interest means a
material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. [14] The gist of the question
of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions.
[15]

In the case at bar, the IBP primarily anchors its standing on its alleged responsibility
to uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. Based on the standards above-stated,
the IBP has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of
Court, is to elevate the standards of the law profession and to improve the

administration of justice is alien to, and cannot be affected by the deployment of the
Marines. It should also be noted that the interest of the National President of the IBP
who signed the petition, is his alone, absent a formal board resolution authorizing him to
file the present action. To be sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue. Moreover, the IBP, assuming that it has duly
authorized the National President to file the petition, has not shown any specific injury
which it has suffered or may suffer by virtue of the questioned governmental
act. Indeed, none of its members, whom the IBP purportedly represents, has sustained
any form of injury as a result of the operation of the joint visibility patrols. Neither is it
alleged that any of its members has been arrested or that their civil liberties have been
violated by the deployment of the Marines. What the IBP projects as injurious is the
supposed militarization of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run. Not only is the
presumed injury not personal in character, it is likewise too vague, highly speculative
and uncertain to satisfy the requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule that the IBP
has absolutely no standing to raise constitutional issues now or in the future. The IBP
must, by way of allegations and proof, satisfy this Court that it has sufficient stake to
obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement of legal
standing when paramount interest is involved. [16] In not a few cases, the Court has
adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able
to craft an issue of transcendental significance to the people. [17] Thus, when the issues
raised are of paramount importance to the public, the Court may brush aside
technicalities of procedure.[18] In this case, a reading of the petition shows that the IBP
has advanced constitutional issues which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents. Moreover, because peace and
order are under constant threat and lawless violence occurs in increasing tempo,
undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy
raised in the petition almost certainly will not go away. It will stare us in the face
again. It, therefore, behooves the Court to relax the rules on standing and to resolve the
issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid
the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the
military personnel falls under the Commander-in-Chief powers of the President as
stated in Section 18, Article VII of the Constitution, specifically, the power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion. What the

IBP questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court review the sufficiency of the factual basis for said troop [Marine] deployment.
[19]

The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review
powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers
and limits, and the extent of judicial review. But, while this Court gives considerable
weight to the parties formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines of the issues
raised.Thus, while the parties are in agreement that the power exercised by the
President is the power to call out the armed forces, the Court is of the view that the
power involved may be no more than the maintenance of peace and order and
promotion of the general welfare.[20] For one, the realities on the ground do not show that
there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt
of the military is not brought upon the citizenry, a point discussed in the latter part of this
decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the Presidents powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence.The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling presidential
duties in times of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot
be said to exclude the Presidents exercising as Commander-in-Chief powers
short of the calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power
to call out the armed forces to prevent or suppress lawless violence, invasion or
rebellion, the resolution of the controversy will reach a similar result.

We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
notjusticiable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.[22] It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even
in instances that are ripe for resolution. One class of cases wherein the Court hesitates
to rule on are political questions. The reason is that political questions are concerned
with issues dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to step in to uphold the law
and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of government. Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or
to the people themselves then it is held to be a political question. In the classic
formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a courts undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one
question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he
Judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law. Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.[25] Under this definition, the Court cannot agree with the Solicitor General
that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given
to this Court.[27] When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of discretion

amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion
or hostility.[29] Under this definition, a court is without power to directly decide matters
over which full discretionary authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of the President, it may look into
the question of whether such exercise has been made in grave abuse of discretion. [30] A
showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise
to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the Presidents decision is
totally bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the
military. In the performance of this Courts duty of purposeful hesitation [32] before
declaring an act of another branch as unconstitutional, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Presidents judgment. To
doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to determine the
necessity for the exercise of such power. Section 18, Article VII of the Constitution,
which embodies the powers of the President as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the


Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus,
or place the Philippines or any part thereof under martial law.
xxx

The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:
xxx

Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by
a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with
invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the revocation or
review of the Presidents action to call out the armed forces. The distinction places the

calling out power in a different category from the power to declare martial law and the
power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the Constitution would have simply lumped together the three powers and provided for
their revocation and review without any qualification. Expressio unius est exclusio
alterius. Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters. [33] That the intent of the
Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary
to the President, is extant in the deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can call
out such Armed Forces as may be necessary to suppress lawless violence;
then he can suspend the privilege of the writ of habeas corpus, then he can
impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the
privilege of the writ of habeas corpus, his judgment is subject to review. We
are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is necessary, it is my
opinion that his judgment cannot be reviewed by anybody.
xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: The President may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion.
So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent
danger, the matter can be handled by the First Sentence: The
President....may call out such Armed Forces to prevent or suppress lawless
violence, invasion or rebellion. So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?
MR. REGALADO. That does not require any concurrence by the legislature
nor is it subject to judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest discretion in

using the power to call out because it is considered as the lesser and more benign
power compared to the power to suspend the privilege of the writ of habeas corpus and
the power to impose martial law, both of which involve the curtailment and suppression
of certain basic civil rights and individual freedoms, and thus necessitating safeguards
by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the
power to suspend the privilege of the writ of habeas corpus or to impose martial law,
two conditions must concur: (1) there must be an actual invasion or rebellion and, (2)
public safety must require it. These conditions are not required in the case of the power
to call out the armed forces. The only criterion is that whenever it becomes necessary,
the President may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion." The implication is that the President is given full discretion and
wide latitude in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the armed forces
is not easily quantifiable and cannot be objectively established since matters considered
for satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may
use to judge necessity, information necessary to arrive at such judgment might also
prove unmanageable for the courts. Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence upon which
the President might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the
military to prevent or suppress lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary restraining
order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in
his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the Presidents exercise of judgment deserves to be accorded
respect from this Court.
The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like

bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro


Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in the shopping malls, public utilities,
and other public places. These are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President has sufficient factual basis
to call for military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause
nor does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines, the
civilian task of law enforcement is militarized in violation of Section 3, Article II [36] of the
Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The participation of the
Marines in the conduct of joint visibility patrols is appropriately circumscribed. The
limited participation of the Marines is evident in the provisions of the LOI itself, which
sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that
the local police forces are the ones in charge of the visibility patrols at all times, the real
authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols. [37] Under the LOI, the police
forces are tasked to brief or orient the soldiers on police patrol procedures. [38] It is their
responsibility to direct and manage the deployment of the Marines. [39] It is, likewise, their
duty to provide the necessary equipment to the Marines and render logistical support to
these soldiers.[40] In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover, the deployment of the Marines to
assist the PNP does not unmake the civilian character of the police force. Neither does
it amount to an insidious incursion of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution. [41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the
AFP, by his alleged involvement in civilian law enforcement, has been virtually
appointed to a civilian post in derogation of the aforecited provision. The real authority in
these operations, as stated in the LOI, is lodged with the head of a civilian institution,
the PNP, and not with the military. Such being the case, it does not matter whether the
AFP Chief actually participates in the Task Force Tulungan since he does not exercise
any authority or control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not
destroy the civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the civilian
supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the implementation and execution
of certain traditionally civil functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been rendered, exemplifying
the activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]

This unquestionably constitutes a gloss on executive power resulting from a


systematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned. [59] What we have here is mutual support and
cooperation between the military and civilian authorities, not derogation of civilian
supremacy.
In the United States, where a long tradition of suspicion and hostility towards the
use of military force for domestic purposes has persisted, [60] and whose Constitution,
unlike ours, does not expressly provide for the power to call, the use of military
personnel by civilian law enforcement officers is allowed under circumstances similar to

those surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:

1385. Use of Army and Air Force as posse comitatus


Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army or the
Air Force as posse comitatus or otherwise to execute the laws shall be fined
not more than $10,000 or imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts[63] apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing acceptable involvement of military personnel in civil
law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature,
either presently or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the
Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those
claiming relief. A mere threat of some future injury would be
insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement,
the conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:

3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory,
proscriptive, or compulsory military power. First, the soldiers do not control or direct the operation.
This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no
power to prohibit or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the
nearest police stations for proper disposition. And last, these soldiers apply no coercive force. The
materials or equipment issued to them, as shown in No. 8(c)[70] of Annex A, are all low impact and
defensive in character.The conclusion is that there being no exercise of regulatory, proscriptive or

compulsory military power, the deployment of a handful of Philippine Marines constitutes no


impermissible use of military power for civilian law enforcement. [71]

It appears that the present petition is anchored on fear that once the armed forces
are deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which
it has not, that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the Presidents determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a
single citizen has complained that his political or civil rights have been violated as a
result of the deployment of the Marines. It was precisely to safeguard peace, tranquility
and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in
the streets, not when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
SEPARATE OPINION
PUNO, J.:

If the case at bar is significant, it is because of the government attempt to foist


the political question doctrine to shield an executive act done in the exercise of the
commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would
have diminished the power of judicial review and weakened the checking
authority of this Court over the Chief Executive when he exercises his
commander-in-chief powers. The attempt should remind us of the tragedy that
befell the country when this Court sought refuge in the political question doctrine
and forfeited its most important role as protector of the civil and political rights of
our people. The ongoing conflict in Mindanao may worsen and can force the
Chief Executive to resort to the use of his greater commander-in-chief powers,
hence, this Court should be extra cautious in assaying similar attempts. A laid

back posture may not sit well with our people considering that the 1987
Constitution strengthened the checking powers of this Court and expanded its
jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction
xxx on the part of any branch or instrumentality of the Government. 1
The importance of the issue at bar includes this humble separate opinion. We can
best perceive the different intersecting dimensions of the political question doctrine by
viewing them from the broader canvass of history. Political questions are defined as
those questions which under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of government. 2 They have two aspects: (1) those
matters that are to be exercised by the people in their primary political capacity and (2)
matters which have been specifically delegated to some other department or particular
office of the government, with discretionary power to act. 3 The exercise of the
discretionary power of the legislative or executive branch of government was often the
area where the Court had to wrestle with the political question doctrine. 4
A brief review of some of our case law will thus give us a sharper perspective of the
political question doctrine. This question confronted the Court as early as 1905 in the
case of Barcelon v. Baker.5 The Governor-General of the Philippine Islands, pursuant
to a resolution of the Philippine Commission, suspended the privilege of the writ of
habeas corpus in Cavite and Batangas based on a finding of open insurrection in said
provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed
a petition for the issuance of a writ of habeas corpus alleging that there was no open
insurrection in Batangas. The issue to resolve was whether or not the judicial
department may investigate the facts upon which the legislative (the Philippine
Commission) and executive (the Governor-General) branches of government acted in
suspending the privilege of the writ.
The Court ruled that under our form of government, one department has no
authority to inquire into the acts of another, which acts are performed within the
discretion of the other department. 6 Surveying American law and jurisprudence, it held
that whenever a statute gives discretionary power to any person, to be exercised by him
upon his own opinion of certain facts, the statute constitutes him the sole judge of the
existence of those facts.7 Since the Philippine Bill of 1902 empowered the Philippine
Commission and the Governor-General to suspend the privilege of the writ of habeas
corpus, this power is exclusively within the discretion of the legislative and executive
branches of government. The exercise of this discretion is conclusive upon the
courts.8
The Court further held that once a determination is made by the executive and
legislative departments that the conditions justifying the assailed acts exists, it will
presume that the conditions continue until the same authority decide that they no longer
exist.9 It adopted the rationale that the executive branch, thru its civil and military
branches, arebetter situated to obtain information about peace and order from every
corner of the nation, in contrast with the judicial department, with its very limited
machinery.10 The seed of the political question doctrine was thus planted in
Philippine soil.

The doctrine barring judicial review because of the political question doctrine
was next applied to the internal affairs of the legislature. The Court refused to
interfere in the legislative exercise of disciplinary power over its own members. In the
1924 case of Alejandrino v. Quezon,11 Alejandrino, who was appointed Senator by the
Governor-General, was declared by Senate Resolution as guilty of disorderly conduct
for assaulting another Senator in the course of a debate, and was suspended from
office for one year. Senator Alejandrino filed a petition for mandamus and injunction to
compel the Senate to reinstate him. The Court held that under the Jones Law, the
power of the Senate to punish its members for disorderly behavior does not authorize it
to suspend an appointive member from the exercise of his office. While the Court found
that the suspension was illegal, it refused to issue the writ of mandamus on the ground
that "the Supreme Court does not possess the power of coercion to make the Philippine
Senate take any particular action. [T]he Philippine Legislature or any branch thereof
cannot be directly controlled in the exercise of their legislative powers by any judicial
process."12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino,13 three senators-elect who had been prevented from taking their oaths of office
by a Senate resolution repaired to this Court to compel their colleagues to allow them to
occupy their seats contending that only the Electoral Tribunal had jurisdiction over
contests relating to their election, returns and qualifications. Again, the Court refused to
intervene citing Alejandrino and affirmed the inherent right of the legislature to
determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight
representatives who were proclaimed elected by Comelec were not allowed by
Congress to take part in the voting for the passage of the Parity amendment to the
Constitution. If their votes had been counted, the affirmative votes in favor of the
proposed amendment would have been short of the necessary three-fourths vote in
either House of Congress to pass the amendment. The amendment was eventually
submitted to the people for ratification. The Court declined to intervene and held that a
proposal to amend the Constitution is a highly political function performed by Congress
in its sovereign legislative capacity.15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the
legality of his detention ordered by the Senate for his refusal to answer questions put to
him by members of one of its investigating committees. This Court refused to order his
release holding that the process by which a contumacious witness is dealt with by the
legislature is a necessary concomitant of the legislative process and the legislature's
exercise of its discretionary authority is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line.
Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for
serious disorderly behavior for making a privilege speech imputing "malicious charges"
against the President of the Philippines. Osmena, Jr. invoked the power of review of this
Court but the Court once more did not interfere with Congress' power to discipline its
members.

The contours of the political question doctrine have always been tricky. To be sure,
the Court did not always stay its hand whenever the doctrine is invoked. In the 1949
case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was deposed and
replaced, questioned his successor's title claiming that the latter had been elected
without a quorum. The petition was initially dismissed on the ground that the selection of
Senate President was an internal matter and not subject to judicial review. 19 On
reconsideration, however, the Court ruled that it could assume jurisdiction over the
controversy in light of subsequent events justifying intervention among which was the
existence of a quorum.20 Though the petition was ultimately dismissed, the Court
declared respondent Cuenco as the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a
dispute involving the formation and composition of the Senate Electoral Tribunal. It
rejected the Solicitor General's claim that the dispute involved a political question.
Instead, it declared that the Senate is not clothed with "full discretionary authority" in the
choice of members of the Senate Electoral Tribunal and the exercise of its power
thereon is subject to constitutional limitations which are mandatory in nature. 22 It held
that under the Constitution, the membership of the Senate Electoral Tribunal was
designed to insure the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body.23 The Court then nullified the
election to the Senate Electoral Tribunal made by Senators belonging to the party
having the largest number of votes of two of their party members but purporting to act
on behalf of the party having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether
Congress had formed the Commission on Appointments in accordance with the
Constitution and found that it did not. It declared that the Commission on Appointments
is a creature of the Constitution and its power does not come from Congress but from
the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not
Congress, acting as a constituent assembly in proposing amendments to the
Constitution violates the Constitution was held to be a justiciable and not a political
issue. In Gonzales, the Court ruled:

"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question
whether or not a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution-which was being submitted to the
people for ratification-satisfied the three-fourths vote requirement of the
fundamental law. The force of this precedent has been weakened, however,
by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v.
Cuenco, and Macias v. Commission on Elections. In the first, we held that the
officers and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President, as claimed by the

latter; in the second, this Court proceeded to determine the number of


Senators necessary for a quorum in the Senate; in the third, we nullified the
election, by Senators belonging to the party having the largest number of
votes in said chamber, purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators belonging to the
first party, as members, for the second party, of the Senate Electoral Tribunal;
and in the fourth, we declared unconstitutional an act of Congress purporting
to apportion the representative districts for the House of Representatives upon
the ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus, we rejected
the theory, advanced in these four cases, that the issues therein raised were
political questions the determination of which is beyond judicial review.27
The Court explained that the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative powers to
Congress. As a constituent assembly, the members of Congress derive their authority
from the fundamental law and they do not have the final say on whether their acts are
within or beyond constitutional limits. 28 This ruling was reiterated in Tolentino which held
that acts of a constitutional convention called for the purpose of proposing amendments
to the Constitution are at par with acts of Congress acting as a constituent assembly.29
In sum, this Court brushed aside the political question doctrine and assumed
jurisdiction whenever it found constitutionally-imposed limits on the exercise of
powers conferred upon the Legislature.30
The Court hewed to the same line as regards the exercise of Executive
power. Thus, the respect accorded executive discretion was observed in Severino v.
Governor-General,31 where it was held that the Governor-General, as head of the
executive department, could not be compelled by mandamus to call a special election in
the town of Silay for the purpose of electing a municipal president. Mandamus and
injunction could not lie to enforce or restrain a duty which is discretionary. It was held
that when the Legislature conferred upon the Governor-General powers and duties, it
did so for the reason that he was in a better position to know the needs of the country
than any other member of the executive department, and with full confidence that he will
perform such duties as his best judgment dictates. 32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not
be compelled by mandamus to produce certain vouchers showing the various
expenditures of the Independence Commission. Under the principle of separation of
powers, it ruled that it was not intended by the Constitution that one branch of
government could encroach upon the field of duty of the other. Each department has an
exclusive field within which it can perform its part within certain discretionary limits. 34 It
observed that "the executive and legislative departments of government are frequently
called upon to deal with what are known as political questions, with which the judicial
department of government has no intervention. In all such questions, the courts
uniformly refused to intervene for the purpose of directing or controlling the actions of

the other department; such questions being many times reserved to those departments
in the organic law of the state."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining
the Chief Executive from deporting an obnoxious alien whose continued presence in the
Philippines was found by him to be injurious to the public interest. It noted that sudden
and unexpected conditions may arise, growing out of the presence of untrustworthy
aliens, which demand immediate action. The President's inherent power to deport
undesirable aliens is universally denominated as political, and this power continues to
exist for the preservation of the peace and domestic tranquility of the nation. 37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of
the President's appointing power. It held that the appointing power is the exclusive
prerogative of the President, upon which no limitations may be imposed by Congress,
except those resulting from the need of securing concurrence of the Commission on
Appointments and from the exercise of the limited legislative power to prescribe
qualifications to a given appointive office.
We now come to the exercise by the President of his powers as Commanderin-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that
as Commander-in-Chief of the Armed Forces, the President has the power to determine
whether war, in the legal sense, still continues or has terminated. It ruled that it is within
the province of the political department and not of the judicial department of government
to determine when war is at end.39
In 1952, the Court decided the landmark case of Montenegro v.
Castaneda.40 President Quirino suspended the privilege of the writ of habeas corpus for
persons detained or to be detained for crimes of sedition, insurrection or rebellion. The
Court, citing Barcelon, declared that the authority to decide whether the exigency has
arisen requiring the suspension of the privilege belongs to the President and his
decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v.
Garcia came.42 Lansang reversed the previous cases and held that the suspension of the
privilege of the writ of habeas corpus was not a political question. According to the
Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin
v. Mott, which involved the U.S. President's power to call out the militia which is a much
broader power than suspension of the privilege of the writ; and (2) the privilege was
suspended by the American Governor-General whose act, as representative of the
sovereign affecting the freedom of its subjects, could not be equated with that of the
President of the Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of
habeas corpus is neither absolute nor unqualified because the Constitution sets
limits on the exercise of executive discretion on the matter. These limits are: (1)
that the privilege must not be suspended except only in cases of invasion, insurrection
or rebellion or imminent danger thereof; and (2) when the public safety requires it, in
any of which events the same may be suspended wherever during such period the

necessity for the suspension shall exist. The extent of the power which may be inquired
into by courts is defined by these limitations.43
On the vital issue of how the Court may inquire into the President's exercise of
power, it ruled that the function of the Court is not to supplant but merely to check the
Executive; to ascertain whether the President has gone beyond the constitutional limits
of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of
his act. Judicial inquiry is confined to the question of whether the President did not act
arbitrarily.44 Using this yardstick, the Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the
political question defense. The issue divided the Court down the middle. Javellana v.
Executive Secretary45 showed that while a majority of the Court held that the issue of
whether or not the 1973 Constitution had been ratified in accordance with the 1935
Constitution was justiciable, a majority also ruled that the decisive issue of whether the
1973 Constitution had come into force and effect, with or without constitutional
ratification, was a political question.46
The validity of the declaration of martial law by then President Marcos was next
litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration
of martial law. On whether the validity of the imposition of martial law was a political or
justiciable question, the Court was almost evenly divided. One-half embraced the
political question position and the other half subscribed to the justiciable position in
Lansang. Those adhering to the political question doctrine used different methods of
approach to it.48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v.
Enrile.49 The petitioners therein were arrested and detained by the Philippine
Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought
the issuance of a writ of habeas corpus. The Court found that the PCO had the function
of validating a person's detention for any of the offenses covered in Proclamation No.
2045 which continued in force the suspension of the privilege of the writ of habeas
corpus. It held that the issuance of the PCO by the President was not subject to judicial
inquiry.50 It went further by declaring that there was a need to re-examine Lansang with
a view to reverting to Barcelon and Montenegro. It observed that in times of war or
national emergency, the President must be given absolute control for the very life of the
nation and government is in great peril. The President, it intoned, is answerable only to
his conscience, the people, and God.51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must
inquire into every phase and aspect of a person's detention from the moment he was
taken into custody up to the moment the court passes upon the merits of the
petition. Only after such a scrutiny can the court satisfy itself that the due process
clause of the Constitution has been met.53
It is now history that the improper reliance by the Court on the political
question doctrine eroded the people's faith in its capacity to check abuses
committed by the then Executive in the exercise of his commander-in-chief

powers, particularly violations against human rights. The refusal of courts to be


pro-active in the exercise of its checking power drove the people to the streets to
resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that
drafted the 1987 Constitution. The first was the need to grant this Court the express
power to review the exercise of the powers as commander-in-chief by the President
and deny it of any discretion to decline its exercise. The second was the need to
compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid
back stance against acts constituting grave abuse of discretion on the part of any
branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a
member of the Constitutional Commission, worked for the insertion of the second
paragraph of Section 1, Article VIII in the draft Constitution, 54 which reads:

"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government."
The language of the provision clearly gives the Court the power to strike down acts
amounting to grave abuse of discretion of both the legislative and executive branches
of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our
constitutional history. The provision states:

"Sec. 18. The President shall be the Commander-in-Chief of all armed


forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in
writing to Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be
determined by Congress, if the invasion or rebellion shall persist and public
safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days
from its filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the
armed forces of the Philippines, may call out the armed forces subject to two
conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress
lawless violence, invasion or rebellion. Undeniably, these conditions lay down
thesine qua requirement for the exercise of the power and the objective sought to
be attained by the exercise of the power. They define the constitutional
parameters of the calling out power. Whether or not there is compliance with
these parameters is a justiciable issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission,
Commissioner Bernas opined that the President's exercise of the "calling out power,"
unlike the suspension of the privilege of the writ of habeas corpus and the declaration of
martial law, is not a justiciable issue but a political question and therefore not subject to
judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the
floor of the Constitutional Convention is valuable, it is not necessarily expressive of the
people's intent.55 The proceedings of the Convention are less conclusive on the proper
construction of the fundamental law than are legislative proceedings of the proper
construction of a statute, for in the latter case it is the intent of the legislature the courts
seek, while in the former, courts seek to arrive at the intent of the people through the
discussions and deliberations of their representatives. 56 The conventional wisdom is that
the Constitution does not derive its force from the convention which framed it, but from
the people who ratified it, the intent to be arrived at is that of the people. 57
It is true that the third paragraph of Section 18, Article VII of the 1987
Constitution expressly gives the Court the power to review the sufficiency of the
factual bases used by the President in the suspension of the privilege of the writ
of habeas corpus and the declaration of martial law. It does not follow, however,
that just because the same provision did not grant to this Court the power to
review the exercise of the calling out power by the President, ergo, this Court
cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power
merely means that the Court cannot decline the exercise of its power because of

the political question doctrine as it did in the past. In fine, the express grant
simply stresses the mandatory duty of this Court to check the exercise of the
commander-in-chief powers of the President. It eliminated the discretion of the
Court not to wield its power of review thru the use of the political question
doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to
the power to suspend the privilege of the writ of habeas corpus and the power to
declare martial law. Even then, its exercise cannot be left to the absolute discretion of
the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the
rights of our people protected by the Constitution cannot be downgraded. We cannot
hold that acts of the commander-in-chief cannot be reviewed on the ground that they
have lesser impact on the civil and political rights of our people. The exercise of the
calling out power may be "benign" in the case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and
Concurring Opinion in Lansang that it would be dangerous and misleading to push the
political question doctrine too far, is apropos. It will not be complementary to the Court
if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a
palpably unwarranted use of presidential or military power, especially when the question
at issue falls in the penumbra between the "political" and the "justiciable. " 58
We should not water down the ruling that deciding whether a matter has been
committed by the Constitution to another branch of government, or whether the action of
that branch exceeds whatever authority has been committed, is a delicate exercise in
constitutional interpretation, and is a responsibility of the Court as ultimate
interpreter of the fundamental law.59 When private justiciable rights are involved in a
suit, the Court must not refuse to assume jurisdiction even though questions of extreme
political importance are necessarily involved.60 Every officer under a constitutional
government must act according to law and subject to the controlling power of the
people, acting through the courts, as well as through the executive and legislative. One
department is just as representative of the other, and the judiciary is the department
which is charged with the special duty of determining the limitations which the law
places upon all official action.61 This historic role of the Court is the foundation stone
of a government of laws and not of men.62
I join the Decision in its result.
SEPARATE OPINION
VITUG, J.:

In the equation of judicial power, neither of two extremes - one totalistic and the
other bounded - is acceptable nor ideal. The 1987 Constitution has introduced its
definition of the term "judicial power" to be that which -

x x x includes the duty of the courts of justice to settle actual controversies


involving rights which are legally demandable and enforceable, and to
determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.1
It is not meant that the Supreme Court must be deemed vested with the awesome
power of overseeing the entire bureaucracy, let alone of institutionalizing judicial
absolutism, under its mandate. But while this Court does not wield unlimited authority to
strike down an act of its two co-equal branches of government, it must not wither under
technical guise on its constitutionally ordained task to intervene, and to nullify if need
be, any such act as and when it is attended by grave abuse of discretion amounting to
lack or excess of jurisdiction. The proscription then against an interposition by the Court
into purely political questions, heretofore known, no longer holds within that context.
Justice Feria, in the case of Avelino vs. Cuenco, 2 has aptly elucidated in his
concurring opinion:

"x x x [I] concur with the majority that this Court has jurisdiction over cases like
the present x x x so as to establish in this country the judicial supremacy, with
the Supreme Court as the final arbiter, to see that no one branch or agency of
the government transcends the Constitution, not only in justiceable but
political questions as well."3
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.
The term grave abuse of discretion is long understood in our jurisprudence as
being, and confined to, a capricious and whimsical or despotic exercise of judgment
amounting to lack or excess of jurisdiction. Minus the not-so-unusual exaggerations
often invoked by litigants in the duel of views, the act of the President in simply calling
on the Armed Forces of the Philippines, an executive prerogative, to assist the
Philippine National Police in "joint visibility patrols" in the metropolis does not, I
believe, constitute grave abuse of discretion that would now warrant an exercise by the
Supreme Court of its extraordinary power as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.
MENDOZA, J., concurring and dissenting:

I concur in the opinion of the Court insofar as it holds petitioner to be without


standing to question the validity of LOI 02/2000 which mandates the Philippine Marines
to conduct "joint visibility" patrols with the police in Metro Manila. But I dissent insofar as
the opinion dismisses the petition in this case on other grounds. I submit that judgment
on the substantive constitutional issues raised by petitioner must await an actual case

involving real parties with "injuries" to show as a result of the operation of the
challenged executive action. While as an organization for the advancement of the rule
of law petitioner has an interest in upholding the Constitution, its interest is
indistinguishable from the interest of the rest of the citizenry and falls short of that which
is necessary to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality of
governmental action requires that (1) the petitioner must have suffered an "injury in fact"
of an actual or imminent nature; (2) there must be a causal connection between the
injury and the conduct complained of; and (3) the injury is likely to be redressed by a
favorable action by this Court.1 The "injury in fact" test requires more than injury to a
cognizable interest. It requires that the party seeking review be himself among those
injured.2
My insistence on compliance with the standing requirement is grounded in the
conviction that only a party injured by the operation of the governmental action
challenged is in the best position to aid the Court in determining the precise nature of
the problem presented. Many a time we have adverted to the power of judicial review as
an awesome power not to be exercised save in the most exigent situation. For, indeed,
sound judgment on momentous constitutional questions is not likely to be reached
unless it is the result of a clash of adversary arguments which only parties with direct
and specific interest in the outcome of the controversy can make. This is true not only
when we strike down a law or official action but also when we uphold it.
In this case, because of the absence of parties with real and substantial interest to
protect, we do not have evidence on the effect of military presence in malls and
commercial centers, i.e., whether such presence is coercive or benign. We do not know
whether the presence of so many marines and policemen scares shoppers, tourists,
and peaceful civilians, or whether it is reassuring to them. To be sure, the deployment of
troops to such places is not like parading them at the Luneta on Independence
Day. Neither is it, however, like calling them out because of actual fighting or the
outbreak of violence.
We need to have evidence on these questions because, under the Constitution, the
President's power to call out the armed forces in order to suppress lawless violence,
invasion or rebellion is subject to the limitation that the exercise of this power is required
in the interest of public safety.3
Indeed, whether it is the calling out of the armed forces alone in order to suppress
lawless violence, invasion or rebellion or also the suspension of the privilege of the writ
of habeas corpus or the proclamation of martial law (in case of invasion or rebellion),
the exercise of the President's powers as commander-in-chief, requires proof - not mere
assertion.4 As has been pointed out, "Standing is not `an ingenious academic exercise
in the conceivable' . . . but requires . . . a factual showing of perceptible harm." 5
Because of the absence of such record evidence, we are left to guess or even
speculate on these questions. Thus, at one point, the majority opinion says that what is
involved here is not even the calling out of the armed forces but only the use of marines
for law enforcement. (p. 13) At another point, however, the majority opinion somersaults

and says that because of bombings perpetrated by lawless elements, the deployment of
troops in shopping centers and public utilities is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground that the
calling out of the military does not violate the Constitution, just as we are likely to do so
if we grant the petition and invalidate the executive issuance in question. For indeed,
the lack of a real, earnest and vital controversy can only impoverish the judicial
process.That is why, as Justice Laurel emphasized in the Angara case, "this power of
judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question
raised or the very lis mota presented."6
We are told, however, that the issues raised in this case are of "paramount interest"
to the nation. It is precisely because the issues raised are of paramount importance that
we should all the more forego ruling on the constitutional issues raised by petitioner and
limit the dismissal of this petition on the ground of lack of standing of petitioner. A
Fabian policy of leaving well enough alone is a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished by
the majority opinion on the constitutional questions raised, I am constrained to limit my
concurrence to the dismissal of this suit on the ground of lack of standing of petitioner
and the consequent lack of an actual case or controversy.

Sec. 1, Article VIII, 1987 Constitution.


Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.
3
Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909].
4
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 859 [1996].
5
5 Phil. 87 [1905].
6
Id. at 97.
7
Id. at 104.
8
See Cruz, Philippine Political law, p. 87 [1998].
9
Id. at 113-114.
10
Id. at 106-107.
11
46 Phil. 83 [1924].
12
Id. at 97.
13
77 Phil. 192 [1946].
14
78 Phil. 1 [1947].
15
Id. at 4-5. The court also adopted the enrolled bill theory which, like findings under the political question doctrine,
imports absolute verity on the courts-at 12.
16
97 Phil. 358 [1955].
17
109 Phil. 863 [1960].
18
83 Phil. 17 [1949].
19
Id. at 21-22.
20
Id. at 68-69.
21
103 Phil. 1051 [1957].
22
Id. at 1068.
23
Id. at 1083.
24
5 SCRA 1 [1962].
25
21 SCRA 774 [1967].
26
41 SCRA 702 [1971].
2

27

Id. at 785-786.
Id. at 787.
29
41 SCRA at 713.
30
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 861 [1996].
31
16 Phil. 366 [1910].
32
Id. at 401.
33
45 Phil. 612 [1924].
34
Id. At 630.
35
Id. at 637-638.
36
16 Phil. 534 [1910].
37
Id. at 568-569, 576.
38
94 Phil. 903 [1954].
39
Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil. 50 [1945].
40
91 Phil. 882 [1952].
41
Id. at 887.
42
42 SCRA 448 [1971].
43
Id. at 474.
44
Id. at 480-481.
45
50 SCRA 30 [1973].
46
Id. at 138, 140-141.
47
59 SCRA 183 [1973].
48
Ibid.
49
121 SCRA 472 [1983].
50
Id. at 490-491.
51
Id. at 500-501.
52
121 SCRA 538 [1983].
53
Id. at 563.
54
See Concepcions sponsorship speech, I Record 434-435; see also Bernas, the Constitution of the Republic of the
Philippines A Commentary, p. 863 [1996].
55
J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426 [1970].
56
Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Construction, 4th ed., p. 454 [1998].
57
Black, Handbook on the Construction and Interpretation of the laws, 2d ed., p. 39 [1911].
58
SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-in-Chief, pp. 16-17 [1951].
59
Baker v. Carr, 7 L Ed 2d at 682.
60
Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336 [1929].
61
Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW 408 [1909].
62
Id.
1
Section 1, Article VIII of the Constitution.
2
83 Phil. 17.
3
Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., 298 SCRA 756.
1
Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord, Telecommunication and Broadcast Attorneys of
the Philippines v. COMELEC, 289 SCRA 343 (1998).
2
Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).
3
See CONST., ART. VII, 18.
4
See Lansang v. Garcia, 42 SCRA 448 (1971).
5
Lujan v. Defenders of Wildlife, supra.
6
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)
28

[1]
[2]

Rollo, pp. 17-21.

As of 19 May 2000, the Marines have been recalled from their areas of deployment to join the military operations
in Mindanao, and replaced by Air Force personnel who took over their functions in the joint visibility patrols.The
Air Force personnel, just like the Marines, were ordered to assist the PNP, also by virtue of LOI 2/2000. Since both

the Marines and Air Force belong to the Armed Forces, the controversy has not been rendered moot and academic
by the replacement of the former by the latter. The validity of the deployment of the armed forces in the joint
visibility patrols thus remain an issue.
[3]

Rollo, pp. 75-76.

[4]

Id., at 75.

[5]

Id.

[6]

Id.

[7]

Rollo, p. 75.

[8]

Id., at 17-18.

[9]

Id.

[10]

Rollo, p. 7.

[11]

Id., at 24.

[12]

Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994) citing Luz Farms v. Secretary of
the Department of Agrarian Reform, 192 SCRA 51 (1990); Dumlao v. Commission on Elections, 95 SCRA 392
(1980); and, People v. Vera, 65 Phil. 56 (1937).
[13]

Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993).

[14]

Ibid., citing House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA
703 (1987).
[15]

Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).

[16]

Joya v. Presidential Commission on Good Government, supra note 13, at 579 citing Dumlao v. Commission
on Elections, 95 SCRA 392 (1980).
[17]

Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997) citing Garcia v. Executive Secretary,
211 SCRA 219 (1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991); and,
Araneta v. Dinglasan, 84 Phil. 368 (1949).
[18]

Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on Good Government, 225
SCRA 568 (1993); Daza v. Singson, 180 SCRA 496 (1989). As formulated by Mr. Justice (now Chief Justice)
Hilario G. Davide, Jr. in Kilosbayan, Inc. vs. Guingona, Jr., [232 SCRA 110 (1994)] "(a) party's standing before this
Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance
of the issues raised," favorably citing our ruling in the Emergency Powers Cases [L-2044 (Araneta v. Dinglasan); L2756 (Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de Filipinas); and L-3056 (Barredo v. COMELEC), 84
Phil. 368 (1940)] where this Court brushed aside this technicality because "the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technical
rules of procedure." An inflexible rule on locus standi would result in what Mr. Justice Florentino P. Feliciano aptly
described as a doctrinal ball and chain xxx clamped on our own limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130
(1995)].
[19]

Rollo, p. 12

[20]

Article II, Sections 4 and 5 of the Constitution provide:

Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal, military or civil service.
Sec. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the
general welfare are essential for the enjoyment by all the people of the blessings of democracy.
[21]

177 SCRA 668, 694 (1989).

[22]

WESTS LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).

[23]

103 Phil. 1051 (1957).

[24]

369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).

[25]

Article VIII, Sec. 1 of the 1987 CONSTITUTION.

[26]

Santiago v. Guingona, Jr., 298 SCRA 756 (1998).

[27]

Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).

[28]

Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA 496 (1988); Coseteng v. Mitra, 187
SCRA 377 (1990).
[29]

Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers Bank v. NLRC, 165 SCRA 284
(1988); Litton Mills v. Galleon Trader, Inc., 163 SCRA 494 (1988).
[30]

Ledesma v. Court of Appeals, 278 SCRA 659 (1997).

[31]

Bondoc v. Pineda, 201 SCRA 792 (1991).

[32]

Drilon v. Lim, 235 SCRA 135 (1994).

[33]

Sarmiento v. Mison, 156 SCRA 549 (1987).

[34]

II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412
(1986).
[35]

Rollo, p. 75.

[36]

Section 3, provides:

Civilian authority, is at all times, supreme over the military. The Armed Forces of the Philippines is the protector of
the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
[37]

No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:

a. RD, NCRPO is designated as Task Force Commander TULUNGAN.


[38]

No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:

b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police
patrol/visibility procedures.
[39]

No. 8 of the LOI provides: TASKS:

k. POLICE DISTRICTS/STATIONS
-Provide direction and manage the deployment of all Philippine Marines personnel deployed in your AOR for police
visibility operations.
-Conduct briefing/orientation to Philippine Marines personnel on the dos and donts of police visibility patrols.
-Provide transportation to Philippine Marines from districts headquarters to different stations and PCPs.
-Perform other tasks as directed.
[40]

No. 8 of the LOI states: TASKS:

c. RLD/R4
-Coordinate with the Directorate for Logistics for the issuance of the following equipments (sic) to be utilize (sic)
by the Philippine Marines personnel: 500 pieces Probaton, 500 whistle (sic), 500 pieces brazzard blazoned.
-Coordinate with the Directorate for Logistics for the issuance of the following for use of PNP personnel involved in
the visibility patrol operations:

1,000 sets of PNP GOA Uniform


500 each raincoats
500 each Probaton
500 each Whistle
500 each handcuffs
500 each Combat Boots
500 each low cut shoes
-Provide transportation to the Philippine Marines personnel in coordination with LSS, NHQ PNP.
-Provide additional gas allocation to Philippine Marines members of the Inspection Teams.
- Perform other tasks as directed.40
[41]

Sec. 5(4), Article XVI, provides:

No member of the Armed Forces in the active service shall, at any time, be appointed in the government including
government-owned and controlled corporations or any of their subsidiaries.
[42]

CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999), which is entitled In Re
Guidelines for the Designation of Registration Centers and the Accountable Officers for the Polaroid Instant
Cameras for Purposes of the Registration of Voters on 8-9 May 1999 in the Autonomous Region in Muslim
Mindanao; Comelec Resolution No. 3059 (1999), which is entitled, In the Matter of Deputizing the Armed Forces of
the Philippines and the Three (3) AFP Components, Namely: Philippine Army, Philippine Navy and Philippine Air
Force, for the Purpose of Ensuring Free, Orderly, Honest and Peaceful Precinct Mapping, Registration of Voters and
the Holding of the September 13, 1999 Elections in the Autonomous Region in Muslim Mindanao
(ARMM); Republic Act No. 7166 (1991), Section 33, which is entitled An Act Providing for Synchronized National
and Local Elections and for Electoral Reforms, Authorizing Appropriations therefor, and for other Purposes;
Administrative Code of 1987, Book V, Title I, Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas Pambansa Blg. 881,
Article VI, Sections 52 (b) and 57 (3) (1985), which is also known as Omnibus Election Code.
[43]

Republic Act No. 95 (1947), Section 5, which is entitled An Act to Incorporate the Philippine National Red Cross
Section; Republic Act No. 855 (1953), Section 1, which is entitled An Act to Amend Section V of Republic Act
Numbered Ninety-Five, entitled An Act to Incorporate the Philippine National Red Cross.
[44]

Republic Act No. 7077 (1991), Article III, Section 7, which is entitled An Act Providing for the Development,
Administration, Organization, Training, Maintenance and Utilization of the Citizen Armed Forces of the Armed
Forces of the Philippines and for other Purposes.
[45]

Republic Act No. 6847 (1990), Section 7, which is entitled An Act Creating and Establishing The Philippine
Sports Commission, Defining its Powers, Functions and Responsibilities, Appropriating Funds therefor, and for
other Purposes.
[46]
Republic Act No. 8492 (1998), Section 20, which is entitled An Act Establishing a National Museum System,
Providing for its Permanent Home and for other Purposes.
[47]

Republic Act No. 8550 (1998), Section 124, which is entitled An Act Providing for the Development,
Management and Conservation of the Fisheries and Aquatic Resources, Integrating All Laws Pertinent Thereto, and
for other Purposes; Memorandum Circular No. 150 (1996), which is entitled Amending Memorandum Circular No.
128, dated July 20, 1995 by Reorganizing the Presidential Task Force on Tubbataha Reef National Marine
Park;Executive Order No. 544 (1979), Letter I, which is entitled Creating a Presidential Committee for the
Conservation of the Tamaraw, Defining its Powers and for other Purposes.
[48]

Executive Order No. 129-A (1987) Section 5 (m), which is entitled Modifying Executive Order No. 129
Reorganizing and Strengthening the Department of Agrarian Reform and for other Purposes.

[49]

Republic Act No. 1937 (1957), Section 2003, which is entitled An Act to Revised and Codify the Tariff and
Customs Laws of the Philippines; Executive Order No. 45 (1998), which is entitled Creating a Presidential AntiSmuggling Task Force to Investigate and Prosecute Crimes Involving Large-Scale Smuggling and other Frauds upon
Customs and Providing Measures to Expedite Seizure Proceedings;
[50]

These cases involved joint military and civilian law enforcement operations: People v. Escalante, G.R No.
106633, December 1, 1994; People v. Bernardo, G.R. No. 97393, March 17, 1993; People v. De la Cruz, G.R. No.
83260, April 18, 1990; Guanzon v. de Villa, 181 SCRA 623, 631 (1990). (This case recognizes the complementary
roles of the PNP and the military in conducting anti-crime campaigns, provided that the peoples rights are not
violated in these words: If the military and the police must conduct concerted campaigns to flush out and catch
criminal elements, such drives must be consistent with the constitutional and statutory rights of all people affected
by such actions. The creation of the Task Force also finds support in Valmonte v. de Villa, 185 SCRA 665
(1990). Executive Order No. 62 (1999), which is entitled Creating the Philippine Center on Transnational Crime to
Formulate and Implement a Concerted Program of Action of All Law Enforcement, Intelligence and other Agencies
for the Prevention and Control of Transnational Crime; Executive Order No. 8 (1998), which is entitled Creating a
Presidential Anti-Organized Crime Commission and a Presidential Anti-Organized Crime Task Force, to Investigate
and Prosecute Criminal Elements in the Country; Executive Order No. 280 (1995), which is entitled Creating a
Presidential Task Force of Intelligence and Counter-Intelligence to Identify, Arrest and Cause the Investigation and
Prosecution of Military and other Law Enforcement Personnel on their Former Members and Their Cohorts
Involved in Criminal Activities.
[51]

Memorandum Circular No. 141 (1996), which is entitled Enjoining Government Agencies Concerned to Extend
Optimum Support and Assistance to the Professional Regulation Commission in its Conduct of Licensure
Examinations.
[52]
Memorandum Circular No. 32 (1999), which is entitled Directing the Government Agencies Concerned to Extend
Maximum Support and Assistance to the National Educational Testing and Research Center (NETRC) of the
Department of Education, Culture and Sports (DECS) in the Conduct of Tests of National Coverage.
[53]

Executive Order No. 61 (1999), which is entitled Creating the National Drug Law Enforcement and Prevention
Coordinating Center to Orchestrate Efforts of national Government Agencies, Local Government Units, and NonGovernment Organizations for a More Effective Anti-Drug Campaign.
[54]

Republic Act No. 4089 (1964), which is entitled An Act Making the City Health Officer of Bacolod City the
Local Civil Registrar, Amending for the Purpose Section Forty-Three of the Charter of said City;" Republic Act No.
537 (1950), which is entitled "An Act to Revise the Charter of Quezon City; Commonwealth Act No. 592 (1940),
which is entitled An Act to Create the City of Dansalan; Commonwealth Act No. 509 (1939), which is entitled An
Act to Create Quezon City; Commonwealth Act No. 326 (1938), which is entitled An Act Creating the City of
Bacolod; Commonwealth Act No. 39 (1936), which is entitled An Act Creating the City of Zamboanga;
Commonwealth Act No. 51 (1936), which is entitled An Act Creating the City of Davao.
[55]

Republic Act No. 36 (1946), which is entitled Census Act of Nineteen Hundred and Forty-Six.

[56]

Republic Act No. 776 (1952), Section 5, which is entitled An Act to Reorganize the Civil Aeronautics Board and
the Civil Aeronautics Administration, To Provide for the Regulation of Civil Aeronautics in the Philippines and
Authorizing the Appropriation of Funds Therefor.
[57]

Republic Act No. 6613 (1972), Section 4, which is entitled An Act Declaring a Policy of the State to Adopt
Modern Scientific Methods to Moderate Typhoons and Prevent Destruction by Floods, Rains and Droughts,
Creating a Council on Typhoons and Prevent Destruction by Flood, Rains and Droughts, Creating a Council on
Typhoon Moderation and Flood Control Research and Development, Providing for its Powers and Functions and
Appropriating Funds Therefor.
[58]

Local Government Code of 1991, Book I, Title Seven, Section 116.

[59]

This theory on gloss of executive power was advanced by Justice Frankfurter in his concurring opinion
in Youngstown Sheet and Tube v. Sawyer, 343 US 579, 610-611 (1952).
[60]

Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).

[61]

18 U.S.C.A 1385 (1878).

[62]

Ibid.

[63]

Bissonette v. Haig, supra note 60, at 1390.

[64]

A power regulatory in nature is one which controls or directs. It is proscriptive if it prohibits or condemns
and compulsory if it exerts some coercive force. See US v. Yunis, 681 F.Supp. 891 (D.D.C., 1988). See also
FOURTH AMENDMENT AND POSSE COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT
IN CIVIL LAW ENFORCEMENT,
[65]

L.O.I. 02/2000, TULUNGAN, Rollo, pp. 17-22.

[66]

No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:

a. The PNP NCPRO thru Police Districts will continue to deploy uniformed PNP personnel dedicated for police
visibility patrols in tandem with the Philippine Marines.
b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police
patrol/visibility procedures.66
[67]

Supra note 34.

[68]

Supra note 32.

[69]

No. 9 of the LOI states:

d. In case of apprehensions, arrested person/s shall be brought to the nearest police stations/PCPs.
[70]

Supra note 35.

[71]

Rollo, p. 70.

EN BANC
B/GEN. (RET.) FRANCISCO V. G.R. No. 170165
GUDANI AND LT. COL.
ALEXANDER F. BALUTAN
Petitioners, Present:
PANGANIBAN, C.J.,
PUNO,
- versus - QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
LT./GEN. GENEROSO S. SENGA CORONA,
AS CHIEF OF STAFF OF THE CARPIO-MORALES,

ARMED FORCES OF THE CALLEJO, SR.,


PHILIPPINES, COL. GILBERTO AZCUNA,
JOSE C. ROA AS THE PRE-TRIAL TINGA,
INVESTIGATING OFFICER, THE CHICO-NAZARIO,
PROVOST MARSHALL GENERAL GARCIA, and
OF THE ARMED FORCES OF THE VELASCO, JR., JJ.
PHILIPPINES AND THE GENERAL
COURT-MARTIAL,
Respondents.
Promulgated:
August 15, 2006
x--------------------------------------------------------------------------- x

DECISION
TINGA, J.:
A most dangerous general proposition is foisted on
that soldiers who defy orders of their superior officers are exempt

the

Court

from the strictures of military law and discipline if such defiance is predicated on
an act otherwise valid under civilian law. Obedience and deference to the military
chain of command and the President as commander-in-chief are the cornerstones of
a professional military in the firm cusp of civilian control. These values of
obedience and deference expected of military officers are content-neutral, beyond
the sway of the officers own sense of what is prudent or rash, or more elementally,
of right or wrong. A self-righteous military invites itself as the scoundrels activist
solution to the ills of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria
Macapagal-Arroyo[1] enjoining them and other military officers from testifying
before Congress without the Presidents consent. Petitioners also pray for injunctive
relief against a pending preliminary investigation against them, in preparation for

possible court-martial proceedings, initiated within the military justice system in


connection with petitioners violation of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty
constitutional
principles
that
center
on
fundamental
freedoms
enshrined in the Bill of Rights. Although these concerns will not be

addressed to the satisfaction of petitioners, the Court recognizes these values as of


paramount importance to our civil society, even if not determinative of the
resolution of this petition. Had the relevant issue before us been the right of the
Senate to compel the testimony of petitioners, the constitutional questions raised
by them would have come to fore. Such a scenario could have very well been
presented to the Court in such manner, without the petitioners having had to violate
a direct order from their commanding officer. Instead, the Court has to resolve
whether petitioners may be subjected to military discipline on account of their
defiance of a direct order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition
must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines
(AFP). Both petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and
Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine
Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan
were assigned to the Philippine Military Academy (PMA) in Baguio City, the
former as the PMA Assistant Superintendent, and the latter as the Assistant
Commandant of Cadets.[2]

On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several


senior officers of the AFP to appear at a public hearing before the Senate
Committee on National Defense and Security (Senate Committee) scheduled on 28
September 2005. The hearing was scheduled after topics concerning the conduct of
the 2004 elections emerged in the public eye, particularly allegations of massive
cheating and the surfacing of copies of an audio excerpt purportedly of a phone
conversation between President Gloria Macapagal Arroyo and an official of the
Commission on Elections (COMELEC) widely reputed as then COMELEC
Commissioner Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani
had been designated as commander, and Col. Balutan a member, of Joint Task
Force Ranao by the AFP Southern Command. Joint Task Force Ranao was tasked

with the maintenance of peace and order during the 2004 elections in the provinces
of Lanao del Norte and Lanao del Sur.[3] `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso
Senga (Gen. Senga) were among the several AFP officers who received a letter
invitation from Sen. Biazon to attend the 28 September 2005 hearing. On 23
September 2005, Gen. Senga replied through a letter to Sen. Biazon that he would
be unable to attend the hearing due to a previous commitment in Brunei, but he
nonetheless directed other officers from the AFP who were invited to attend the
hearing.[4]
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a
Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P.
Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf
of Gen. Senga.[5] Noting that Gen. Gudani and Col. Balutan had been invited to
attend the Senate Committee hearing on 28 September 2005, the Memorandum
directed the two officers to attend the hearing.[6] Conformably, Gen. Gudani and
Col. Balutan filed their respective requests for travel authority addressed to the
PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the
postponement of the hearing scheduled for the following day, since the AFP Chief
of Staff was himself unable to attend said hearing, and that some of the invited
officers also could not attend as they were attending to other urgent operational
matters. By this time, both Gen. Gudani and Col. Balutan had already
departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was
transmitted to the PMA Superintendent from the office of Gen. Senga, stating as
follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP
PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR
SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN
FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC)
ACCORDINGLY.[7]

The following day, Gen. Senga sent another letter to Sen. Biazon, this time
informing the senator that no approval has been granted by the President to any
AFP officer to appear before the hearing scheduled on that day. Nonetheless, both
Gen. Gudani and Col. Balutan were present as the hearing started, and they both
testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this
Court, has offered additional information surrounding the testimony of Gen.
Gudani and Col. Balutan. The OSG manifests that the couriers of
the AFP Command Center had attempted to deliver the radio message to Gen.
Gudanis residence in a subdivision in Paraaque City late in the night of 27
September 2005, but they were not permitted entry by the subdivision guards. The
next day, 28 September 2005, shortly before the start of the hearing, a copy of Gen.
Sengas letter to Sen. Biazon sent earlier that day was handed at the Senate by
Commodore Amable B. Tolentino of the AFP Office for Legislative Affairs to Gen.
Gudani, who replied that he already had a copy. Further, Gen. Senga called
Commodore Tolentino on the latters cell phone and asked to talk to Gen. Gudani,
but Gen. Gudani refused. In response, Gen. Senga instructed Commodore
Tolentino to inform Gen. Gudani that it was an order, yet Gen. Gudani still refused
to take Gen. Sengas call.[8]
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the
office of Gen. Senga issued a statement which noted that the two had appeared
before the Senate Committee in spite of the fact that a guidance has been given that
a Presidential approval should be sought prior to such an appearance; that such
directive was in keeping with the time[-]honored principle of the Chain of
Command; and that the two officers disobeyed a legal order, in violation of
A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be
subjected to General Court Martial proceedings x x x Both Gen. Gudani and Col.
Balutan were likewise relieved of their assignments then.[9]
On the very day of the hearing, 28 September 2005, President Gloria-MacapagalArroyo issued Executive Order No. 464 (E.O. 464). The OSG notes that the E.O.
enjoined officials of the executive department including the military establishment

from appearing in any legislative inquiry without her approval. [10] This Court
subsequently ruled on the constitutionality of the said executive order in Senate v.
Ermita.[11] The relevance of E.O. 464 and Senate to the present petition shall be
discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General
Senga, through Col. Henry A. Galarpe of the AFP Provost Marshal General, to
appear before the Office of the Provost Marshal General (OPMG) on 3 October
2005 for investigation. During their appearance before Col. Galarpe, both
petitioners invoked their right to remain silent.[12] The following day, Gen. Gudani
was compulsorily retired from military service, having reached the age of 56.[13]
In an Investigation Report dated 6 October 2005, the OPMG recommended
that petitioners be charged with violation of Article of War 65, on willfully
disobeying a superior officer, in relation to Article of War 97, on conduct
prejudicial to the good order and military discipline.[14] As recommended, the case
was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial by the
General Court Martial (GCM).[15] Consequently, on 24 October 2005, petitioners
were separately served with Orders respectively addressed to them and signed by
respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the
PTIO. The Orders directed petitioners to appear in person before Col. Roa at the
Pre-Trial Investigation of the Charges for violation of Articles 65 [16] and 97[17] of
Commonwealth Act No. 408,[18] and to submit their counter-affidavits and
affidavits of witnesses at the Office of the Judge Advocate General. [19] The Orders
were accompanied by respective charge sheets against petitioners, accusing them
of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and
prohibition was filed, particularly seeking that (1) the order of President Arroyo
coursed through Gen. Senga preventing petitioners from testifying before Congress
without her prior approval be declared unconstitutional; (2) the charges stated in
the charge sheets against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe,
Col. Roa, and their successors-in-interest or persons acting for and on their behalf
or orders, be permanently enjoined from proceeding against petitioners, as a
consequence of their having testified before the Senate on 28 September 2005.[20]

Petitioners characterize the directive from President Arroyo requiring her prior
approval before any AFP personnel appear before Congress as a gag order, which
violates the principle of separation of powers in government as it interferes with
the investigation of the Senate Committee conducted in aid of legislation. They
also equate the gag order with culpable violation of the Constitution, particularly in
relation to the publics constitutional right to information and transparency in
matters of public concern. Plaintively, petitioners claim that the Filipino people
have every right to hear the [petitioners] testimonies, and even if the gag order
were unconstitutional, it still was tantamount to the crime of obstruction of
justice. Petitioners further argue that there was no law prohibiting them from
testifying before the Senate, and in fact, they were appearing in obeisance to the
authority of Congress to conduct inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to
military jurisdiction on account of his compulsory retirement on 4 October 2005. It
is pointed out that Article 2, Title I of the Articles of War defines persons subject to
military law as all officers and soldiers in the active service of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or
innocence of petitioners in violating Articles 65 and 97 of the Articles of War is not
an issue before this Court, especially considering that per records, petitioners have
not yet been subjected to court martial proceedings. Owing to the absence of such
proceedings, the correct inquiry should be limited to whether respondents could
properly initiate such proceedings preparatory to a formal court-martial, such as
the aforementioned preliminary investigation, on the basis of petitioners acts
surrounding their testimony before the Senate on 28 September 2005. Yet this
Court, consistent with the principle that it is not a trier of facts at first instance, [21] is
averse to making any authoritative findings of fact, for that function is first for the
court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court,
having been commonly alleged by petitioners and the OSG (for respondents).
Petitioners were called by the Senate Committee to testify in its 28 September
2005 hearing. Petitioners attended such hearing and testified before the Committee,

despite the fact that the day before, there was an order from Gen. Senga (which in
turn was sourced per instruction from President Arroyo) prohibiting them from
testifying without the prior approval of the President. Petitioners do not precisely
admit before this Court that they had learned of such order prior to their testimony,
although the OSG asserts that at the very least, Gen. Gudani already knew of such
order before he testified.[22] Yet while this fact may be ultimately material in the
court-martial proceedings, it is not determinative of this petition, which as stated
earlier, does not proffer as an issue whether petitioners are guilty of violating the
Articles of War.
What the Court has to consider though is whether the violation of the
aforementioned order of Gen. Senga, which emanated from the President, could
lead to any investigation for court-martial of petitioners. It has to be acknowledged
as a general principle[23] that AFP personnel of whatever rank are liable under
military law for violating a direct order of an officer superior in rank. Whether
petitioners did violate such an order is not for the Court to decide, but it will be
necessary to assume, for the purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling
in Senate on the present petition. Notably, it is not alleged that petitioners were
in any way called to task for violating E.O. 464, but instead, they were
charged for violating the direct order of Gen. Senga not to appear before the
Senate Committee, an order that stands independent of the executive
order. Distinctions are called for, since Section 2(b) of E.O. 464 listed generals
and flag officers of the Armed Forces of the Philippines and such other officers
who in the judgment of the Chief of Staff are covered by the executive privilege, as
among those public officials required in Section 3 of E.O. 464 to secure prior
consent of the President prior to appearing before either House of Congress. The
Court in Senate declared both Section 2(b) and Section 3 void, [24] and the
impression may have been left following Senate that it settled as doctrine, that the
President is prohibited from requiring military personnel from attending
congressional hearings without having first secured prior presidential consent. That
impression is wrong.

Senate turned on the nature of executive privilege, a presidential prerogative which


is encumbered by significant limitations. Insofar as E.O. 464 compelled officials of
the executive branch to seek prior presidential approval before appearing before
Congress, the notion of executive control also comes into consideration.
[25]
However, the ability of the President to require a military official to secure prior
consent before appearing before Congress pertains to a wholly different and
independent specie of presidential authoritythe commander-in-chief powers of the
President. By tradition and jurisprudence, the commander-in-chief powers of the
President are not encumbered by the same degree of restriction as that which may
attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency
of this petition as well as the issues raised herein. The decision in Senate was
rendered with the comfort that the nullification of portions of E.O. 464 would bear
no impact on the present petition since petitioners herein were not called to task for
violating the executive order. Moreover, the Court was then cognizant
that Senate and this case would ultimately hinge on disparate legal issues.
Relevantly, Senatepurposely did not touch upon or rule on the faculty of the
President, under the aegis of the commander-in-chief powers [26] to require military
officials from securing prior consent before appearing before Congress. The
pertinent factors in considering that question are markedly outside of those which
did become relevant in adjudicating the issues raised in Senate. It is in this petition
that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the
heart of the matter. General Gudani argues that he can no longer fall within the
jurisdiction of the court-martial, considering his retirement last 4 October 2005. He
cites Article 2, Title I of Commonwealth Act No. 408, which defines persons
subject to military law as, among others, all officers and soldiers in the active
service of the [AFP], and points out that he is no longer in the active service.
This point was settled against Gen. Gudanis position in Abadilla v. Ramos,
where the Court declared that an officer whose name was dropped from the roll
of officers cannot be considered to be outside the jurisdiction of military authorities
when military justice proceedings were initiated against him before the termination
[27]

of his service. Once jurisdiction has been acquired over the officer, it continues
until his case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel
Abadilla at the time of the alleged offenses. This jurisdiction having been vested
in the military authorities, it is retained up to the end of the proceedings against
Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost
upon the instance of the parties but continues until the case is terminated.[28]

Citing Colonel Winthrops treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the
following passage which goes against the contention of the petitioners, viz
3. Offenders in general Attaching of jurisdiction. It has
further been held, and is now settled law, in regard to military
offenders in general, that if the military jurisdiction has once
duly attached to them previous to the date of the termination of
their legal period of service, they may be brought to trial by courtmartial after that date, their discharge being meanwhile withheld.
This principle has mostly been applied to cases where the offense
was committed just prior to the end of the term. In such cases the
interests of discipline clearly forbid that the offender should go
unpunished. It is held therefore that if before the day on which
his service legally terminates and his right to a discharge is
complete, proceedings with a view to trial are commenced
against him as by arrest or the service of charges, the military
jurisdiction will fully attach and once attached may be
continued by a trial by court-martial ordered and held after
the end of the term of the enlistment of the accused x x x [29]

Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the
acts complained of and the initiation of the proceedings against him occurred
before he compulsorily retired on 4 October 2005. We see no reason to unsettle
the Abadilla doctrine. The OSG also points out that under Section 28 of
Presidential Decree No. 1638, as amended, [a]n officer or enlisted man carried in
the retired list [of the Armed Forces of the Philippines] shall be subject to the
Articles of War x x x[30]To this citation, petitioners do not offer any response, and in
fact have excluded the matter of Gen. Gudanis retirement as an issue in their
subsequent memorandum.

IV.
We now turn to the central issues.
Petitioners wish to see annulled the gag order that required them to secure
presidential consent prior to their appearance before the Senate, claiming that it
violates the constitutional right to information and transparency in matters of
public concern; or if not, is tantamount at least to the criminal acts of obstruction
of justice and grave coercion. However, the proper perspective from which to
consider this issue entails the examination of the basis and authority of the
President to issue such an order in the first place to members of the AFP and the
determination of whether such an order is subject to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed
Forces is most crucial to the democratic way of life, to civilian supremacy over the
military, and to the general stability of our representative system of government.
The Constitution reposes final authority, control and supervision of the AFP to the
President, a civilian who is not a member of the armed forces, and whose duties as
commander-in-chief represent only a part of the organic duties imposed upon the
office, the other functions being clearly civil in nature.[31] Civilian supremacy over
the military also countermands the notion that the military may bypass civilian
authorities, such as civil courts, on matters such as conducting warrantless searches
and seizures.[32]
Pursuant to the maintenance of civilian supremacy over the military, the
Constitution has allocated specific roles to the legislative and executive branches
of government in relation to military affairs. Military appropriations, as with all
other appropriations, are determined by Congress, as is the power to declare the
existence of a state of war.[33] Congress is also empowered to revoke a
proclamation of martial law or the suspension of the writ of habeas corpus.[34] The
approval of the Commission on Appointments is also required before the President
can promote military officers from the rank of colonel or naval captain.
[35]
Otherwise, on the particulars of civilian dominance and administration over the
military, the
Constitution
is
silent,
except
for the commander-inchief clause which is fertile in meaning and

implication as to whatever inherent martial authority the President may possess.[36]


The commander-in-chief provision in the Constitution is denominated as
Section 18, Article VII, which begins with the simple declaration that [t]he
President shall be the Commander-in-Chief of all armed forces of the Philippines x
x x[37] Outside explicit constitutional limitations, such as those found in Section 5,
Article XVI, the commander-in-chief clause vests on the President, as commanderin-chief, absolute authority over the persons and actions of the members of the
armed forces. Such authority includes the ability of the President to restrict the
travel, movement and speech of military officers, activities which may otherwise
be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col.
Kapunan was ordered confined under house arrest by then Chief of Staff (later
President) Gen. Fidel Ramos. Kapunan was also ordered, as a condition for his
house arrest, that he may not issue any press statements or give any press
conference during his period of detention. The Court unanimously upheld such
restrictions, noting:

[T]he Court is of the view that such is justified by the requirements of


military discipline. It cannot be gainsaid that certain liberties of persons in the
military service, including the freedom of speech, may be circumscribed by
rules of military discipline. Thus, to a certain degree, individual rights may be
curtailed, because the effectiveness of the military in fulfilling its duties under
the law depends to a large extent on the maintenance of discipline within its
ranks. Hence, lawful orders must be followed without question and rules must
be faithfully complied with, irrespective of a soldier's personal views on the
matter. It is from this viewpoint that the restrictions imposed on petitioner
Kapunan, an officer in the AFP, have to be considered.[39]

Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military
way of life circumscribes several of the cherished freedoms of civilian life. It is
part and parcel of the military package. Those who cannot abide by these
limitations normally do not pursue a military career and instead find satisfaction in
other fields; and in fact many of those discharged from the service are inspired in
their later careers precisely by their rebellion against the regimentation of military
life. Inability or unwillingness to cope with military discipline is not a stain on
character, for the military mode is a highly idiosyncratic path which persons are

not generally conscripted into, but volunteer themselves to be part of. But for those
who do make the choice to be a soldier, significant concessions to personal
freedoms are expected. After all, if need be, the men and women of the armed
forces may be commanded upon to die for country, even against their personal
inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has
been fully integrated into the democratic system of governance. The constitutional
role of the armed forces is as protector of the people and of the State. [40] Towards
this end, the military must insist upon a respect for duty and a discipline without
counterpart in civilian life.[41] The laws and traditions governing that discipline
have a long history; but they are founded on unique military exigencies as
powerful now as in the past.[42] In the end, it must be borne in mind that the armed
forces has a distinct subculture with unique needs, a specialized society separate
from civilian society. [43] In the elegant prose of the eminent British military
historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of
politicians and diplomats. They are those of a world apart, a very ancient world,
which exists in parallel with the everyday world but does not belong to it. Both
worlds change over time, and the warrior world adopts in step to the civilian. It
follows it, however, at a distance.The distance can never be closed, for the culture
of the warrior can never be that of civilization itself.[44]

Critical to military discipline is obeisance to the military chain of command.


Willful disobedience of a superior officer is punishable by court-martial under
Article 65 of the Articles of War.[45] An individual soldier is not free to ignore the
lawful orders or duties assigned by his immediate superiors. For there would be an
end of all discipline if the seaman and marines on board a ship of war [or soldiers
deployed in the field], on a distant service, were permitted to
act upon their own opinion oftheir rights [or their opinion of the

Presidents intent], and to throw off the authority of the commander whenever they
supposed it to be unlawfully exercised.[46]
Further traditional restrictions on members of the armed forces are those imposed
on free speech and mobility. Kapunan is ample precedent in justifying that a
soldier may be restrained by a superior officer from speaking out on certain
matters. As a general rule, the discretion of a military officer to restrain the speech
of a soldier under his/her command will be accorded deference, with minimal
regard if at all to the reason for such restraint. It is integral to military discipline
that the soldiers speech be with the consent and approval of the military
commander.
The necessity of upholding the ability to restrain speech becomes even more
imperative if the soldier desires to speak freely on political matters. The
Constitution requires that [t]he armed forces shall be insulated from partisan
politics, and that [n]o member of the military shall engage directly or indirectly in
any partisan political activity, except to vote.[47] Certainly, no constitutional
provision or military indoctrination will eliminate a soldiers ability to form a
personal political opinion, yet it is vital that such opinions be kept out of the public
eye. For one, political belief is a potential source of discord among people, and a
military torn by political strife is incapable of fulfilling its constitutional function
as protectors of the people and of the State. For another, it is ruinous to military
discipline to foment an atmosphere that promotes an active dislike of or dissent
against the President, the commander-in-chief of the armed forces. Soldiers are
constitutionally obliged to obey a President they may dislike or distrust. This
fundamental principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our countrys recent
past is marked by regime changes wherein active military dissent from the chain of
command formed a key, though not exclusive, element. The Court is not blind to
history, yet it is a judge not of history but of the Constitution. The Constitution, and
indeed our modern democratic order, frown in no uncertain terms on a politicized
military, informed as they are on the trauma of absolute martial rule. Our history
might imply that a political military is part of the natural order, but this view
cannot be affirmed by the legal order. The evolutionary path of our young
democracy necessitates a reorientation from this view, reliant as our socio-political

culture has become on it. At the same time, evolution mandates a similar demand
that our system of governance be more responsive to the needs and aspirations of
the citizenry, so as to avoid an environment vulnerable to a military apparatus able
at will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of
travel is another necessary restriction on members of the military. A soldier cannot
leave his/her post without the consent of the commanding officer. The reasons are
self-evident. The commanding officer has to be aware at all times of the location of
the troops under command, so as to be able to appropriately respond to any
exigencies. For the same reason, commanding officers have to be able to restrict
the movement or travel of their soldiers, if in their judgment, their presence at
place of call of duty is necessary. At times, this may lead to unsentimental, painful
consequences, such as a soldier being denied permission to witness the birth of his
first-born, or to attend the funeral of a parent. Yet again, military life calls for
considerable personal sacrifices during the period of conscription, wherein the
higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the
commanding officer before he/she may leave his destination. A soldier who goes
from the properly appointed place of duty or absents from his/her command, guard,
quarters, station, or camp without proper leave is subject to punishment by courtmartial.[48] It is even clear from the record that petitioners had actually requested
for travel authority from the PMA in Baguio City to Manila, to attend the Senate
Hearing.[49] Even petitioners are well aware that it was necessary for them to obtain
permission from their superiors before they could travel to Manila to attend the
Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental
principles we have discussed. They seek to be exempted from military justice for
having traveled to the Senate to testify before the Senate Committee against the
express orders of Gen. Senga, the AFP Chief of Staff. If petitioners position is
affirmed, a considerable exception would be carved from the unimpeachable right
of military officers to restrict the speech and movement of their juniors. The
ruinous consequences to the chain of command and military discipline simply
cannot warrant the Courts imprimatur on petitioners position.

V.
Still, it would be highly myopic on our part to resolve the issue solely on
generalities surrounding military discipline. After all, petitioners seek to impress
on us that their acts are justified as they were responding to an invitation from the
Philippine Senate, a component of the legislative branch of government. At the
same time, the order for them not to testify ultimately came from the President, the
head of the executive branch of government and the commander-in-chief of the
armed forces.
Thus, we have to consider the question: may the President prevent a member of the
armed forces from testifying before a legislative inquiry? We hold that the
President has constitutional authority to do so, by virtue of her power as
commander-in-chief, and that as a consequence a military officer who defies such
injunction is liable under military justice. At the same time, we also hold that any
chamber of Congress which seeks the appearance before it of a military officer
against the consent of the President has adequate remedies under law to compel
such 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
President 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.[50]
Explication of these principles is in order.

As earlier noted, we ruled in Senate that the President may not issue a blanket
requirement of prior consent on executive officials summoned by the legislature to
attend a congressional hearing. In doing so, the Court recognized the considerable
limitations on executive privilege, and affirmed that the privilege must be formally
invoked on specified grounds. However, the ability of the President to prevent
military officers from testifying before Congress does not turn on executive
privilege, but on the Chief Executives power as commander-in-chief to control
the actions and speech of members of the armed forces. The Presidents

prerogatives as commander-in-chief are not hampered by the same limitations


as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to
seek presidential approval before appearing before Congress is based foremost on
the notion that a contrary rule unduly diminishes the prerogatives of the President
as commander-in-chief. Congress holds significant control over the armed forces in
matters such as budget appropriations and the approval of higher-rank promotions,
[51]
yet it is on the President that the Constitution vests the title as commander-inchief and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the
Presidents ability to control the individual members of the armed forces be
accorded the utmost respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation affirm that the
officer has to choose the President. After all, the Constitution prescribes that it is
the President, and not the Senate, who is the commander-in-chief of the armed
forces.[52]
At the same time, the refusal of the President to allow members of the military to
appear before Congress is still subject to judicial relief. The Constitution itself
recognizes as one of the legislatures functions is the conduct of inquiries in aid of
legislation.[53] Inasmuch as it is ill-advised for Congress to interfere with the
Presidents power as commander-in-chief, it is similarly detrimental for the
President to unduly interfere with Congresss right to conduct legislative inquiries.
The impasse did not come to pass in this petition, since petitioners testified anyway
despite the presidential prohibition. Yet the Court is aware that with its
pronouncement today that the President has the right to require prior consent from
members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by
which members of the military may be compelled to attend legislative inquiries
even if the President desires otherwise, a modality which does not offend the Chief
Executives prerogatives as commander-in-chief. The remedy lies with the courts.

The fact that the executive branch is an equal, coordinate branch of


government to the legislative creates a wrinkle to any basic rule that persons
summoned to testify before Congress must do so. There is considerable interplay
between the legislative and executive branches, informed by due deference and
respect as to their various constitutional functions. Reciprocal courtesy idealizes
this relationship; hence, it is only as a last resort that one branch seeks to compel
the other to a particular mode of behavior. The judiciary, the third coordinate
branch of government, does not enjoy a similar dynamic with either the legislative
or executive branches. Whatever weakness inheres on judicial power due to its
inability to originate national policies and legislation, such is balanced by the fact
that it is the branch empowered by the Constitution to compel obeisance to its
rulings by the other branches of government.
As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon
Committee,[55] among others, the Court has not shirked from reviewing the exercise
by Congress of its power of legislative inquiry.[56] Arnault recognized that the
legislative power of inquiry and the process to enforce it, is an essential and
appropriate auxiliary to the legislative function.[57] On the other
hand, Bengzon acknowledged that the power of both houses of Congress to
conduct inquiries in aid of legislation is not absolute or unlimited, and its exercise
is circumscribed by Section 21, Article VI of the Constitution. [58] From these
premises, the Court enjoined the Senate Blue Ribbon Committee from requiring
the petitioners in Bengzon from testifying and producing evidence before the
committee, holding that the inquiry in question did not involve any intended
legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the
constitutional scope and limitations on the constitutional power of congressional
inquiry. Thus:
As discussed in Arnault, the power of inquiry, with process to enforce it, is
grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their offices is
necessary for wise legislation on that subject, by parity of reasoning, Congress has
the right to that information and the power to compel the disclosure thereof.

As evidenced by the American experience during the so-called McCarthy era,


however, the right of Congress to conduct inquirites in aid of legislation is, in
theory, no less susceptible to abuse than executive or judicial power. It may thus
be subjected to judicial review pursuant to the Courts certiorari powers under
Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself
might not properly be in aid of legislation, and thus beyond the constitutional
power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such result as occurred
in Bengzon is to indicate in its invitations to the public officials concerned, or to
any person for that matter, the possible needed statute which prompted the need
for the inquiry. Given such statement in its invitations, along with the usual
indication of the subject of inquiry and the questions relative to and in furtherance
thereof, there would be less room for speculation on the part of the person invited
on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or Houses duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted without
duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit
filed by the persons affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances wherein a clear pattern of
abuse of the legislative power of inquiry might be established, resulting in
palpable violations of the rights guaranteed to members of the executive
department under the Bill of Rights. In such instances, depending on the
particulars of each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction[59].

In Senate, the Court ruled that the President could not impose a blanket prohibition
barring executive officials from testifying before Congress without the Presidents
consent notwithstanding the invocation of executive privilege to justify such
prohibition. The Court did not rule that the power to conduct legislative
inquiry ipso factosuperseded the claim of executive privilege, acknowledging
instead that the viability of executive privilege stood on a case to case basis.
Should neither branch yield to the other branchs assertion, the constitutional
recourse is to the courts, as the final arbiter if the dispute. It is only the courts that

can compel, with conclusiveness, attendance or non-attendance in legislative


inquiries.
Following these principles, it is clear that if the President or the Chief of
Staff refuses to allow a member of the AFP to appear before Congress, the
legislative body seeking such testimony may seek judicial relief to compel the
attendance. Such judicial action should be directed at the heads of the executive
branch or the armed forces, the persons who wield authority and control over the
actions of the officers concerned. The legislative purpose of such testimony, as
well as any defenses against the same whether grounded on executive privilege,
national security or similar concerns would be accorded due judicial evaluation.
All the constitutional considerations pertinent to either branch of government may
be raised, assessed, and ultimately weighed against each other. And once the courts
speak with finality, both branches of government have no option but to comply
with the decision of the courts, whether the effect of the decision is to their liking
or disfavor.
Courts are empowered, under the constitutional principle of judicial review,
to arbitrate disputes between the legislative and executive branches of government
on the proper constitutional parameters of power.[60] This is the fair and workable
solution implicit in the constitutional allocation of powers among the three
branches of government. The judicial filter helps assure that the particularities of
each case would ultimately govern, rather than any overarching principle unduly
inclined towards one branch of government at the expense of the other. The
procedure may not move as expeditiously as some may desire, yet it ensures
thorough deliberation of all relevant and cognizable issues before one branch is
compelled to yield to the other. Moreover, judicial review does not preclude the
legislative and executive branches from negotiating a mutually acceptable solution
to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in
their relationship with a salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the
shoulders of the President, as commander-in-chief, to authorize the
appearance of the military officers before Congress. Even if the President has
earlier disagreed with the notion of officers appearing before the legislature to

testify, the Chief Executive is nonetheless obliged to comply with the final
orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom
of the Presidents order on them and other military officers not to testify before
Congress without the Presidents consent. Yet these issues ultimately detract from
the main point that they testified before the Senate despite an order from their
commanding officer and their commander-in-chief for them not to do so, [61] in
contravention of the traditions of military discipline which we

affirm today. The issues raised by petitioners could have very well been raised and
properly adjudicated if the proper procedure was observed. Petitioners could have
been appropriately allowed to testify before the Senate without having to
countermand their Commander-in-chief and superior officer under the setup we
have prescribed.
We consider the other issues raised by petitioners unnecessary to the
resolution of this petition.
Petitioners may have been of the honest belief that they were defying a direct order
of their Commander-in-Chief and Commanding General in obeisance to a
paramount idea formed within their consciences, which could not be lightly
ignored. Still, the Court, in turn, is guided by the superlative principle that is the
Constitution, the embodiment of the national conscience. The Constitution simply
does not permit the infraction which petitioners have allegedly committed, and
moreover, provides for an orderly manner by which the same result could have
been achieved without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.

DANTE O. TINGA
Associate Justice
WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

REYNATO S. PUNO
Associate Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice

(on leave)
RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

ROMEO J. CALLEJO, SR.


Associate Justice

ADOLFO S. AZCUNA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CANCIO C. GARCIA
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice
C E R T I F I C AT I O N

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified


that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN.
Chief Justice

[1]
Initially denominated as the lead respondent in this petition. However, in a Resolution dated 15
November 2005, the Court ordered the dismissal of the petition as against President Arroyo, owing to her immunity
from suit during her incumbency as President. See rollo, p. 87. See also Estrada v. Desierto, G.R. Nos. 146710-15 &
146738, 2 March 2001, 353 SCRA 452, 516-522.
[2]

Rollo, pp. 15-18.

[3]

Id. at 18.

[4]

Id. at 75.

[5]

Id. at 76-77.

[6]

Id.

[7]

Id. at 81. Capitals not ours.

[8]

Id. at 111-112.

[9]

Id. at 83.

[10]

[11]

Id. at 111.

G.R. Nos. 169777, 169659, 169660, 169667, 169834, 171246, 20 April 2006.

[12]

See rollo, pp. 52, 67.

[13]
Pursuant to Presidential Decree No. 1638, Sec. 5(a) & 17 as amended, and Presidential Administrative
Order No. 150 (4 January 1990).
[14]

These articles of war are contained in Commonwealth Act No. 408, as amended.

[15]

Rollo, p. 68.

[16]

For assaulting or willfully disobeying superior officer. See Article 65, Com. Act No. 408 (1938).

[17]

A general article which punishes all disorders and neglects to the prejudice of good order and military
discipline and all conduct of a nature to bring discredit upon the military service x x x See Com. Act No. 408 (1938),
Art. 97,
[18]

Commonly referred to as the Articles of War.

[19]

Rollo, pp. 45, 59.

[20]

Id. at 42.

[21]

See e.g., Far East Bank and Trust Co. v. Court of Appeals, 326 Phil. 15, 18 (1996).

[22]

Supra note 8.

[23]

As affirmed by Com. Act No. 408, Art. 65 as amended. Supra note 14.

[24]

The writer of this ponencia wrote a Separate Opinion to the Resolution dated 14 July 2005 (denying
respondents motion for reconsideration), wherein, concurring in the result, he elucidated on his position that
Sections 2(b) and 3 of E.O. 464 are valid on its face as they are based on the Presidents constitutional power of
executive control, but void as applied.
[25]

See CONSTITUTION, Art. VII, Sec. 17, which reads, Sec. 17. The President shall have control of all
the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. See also Senate
v. Ermita, G.R. Nos. 169777, 169659, 169660, 169667, 169834, 171246, 14 July, 2005 Separate Opinion, J. Tinga.
[26]

See CONSTITUTION, Art. VII, Sec. 18 , infra.

[27]

No. L-79173, 7 December 1987, 156 SCRA 92.

[28]

Id. at 102.

[29]

Id. at 104-105. Emphasis supplied.

[30]

See rollo, p. 148.

[31]

See Carpio v. Executive Secretary, G.R. No. 96409, 14 February 1992, 206 SCRA 290, 302; citing THE
CONSTITUTION, A COMMENTARY, by Fr. Joaquin Bernas, S.J., Vol. II, p. 212.

[32]

See Alih v. Castro, No. L-69401, 23 June 1987, 151 SCRA 279, 286.

[33]

See CONSTITUTION, Art. VI, Sections 24 & 23(1), respectively. Also worth noting, it was by a statute
that courts-martial were vested jurisdiction to try acts punishable under the Articles of War. See Articles 12 to 15,
Com. Act No. 408, as amended. See also Rep. Act No. 7055.
[34]

See CONSTITUTION, Art. VII, Sec. 18.

[35]

See CONSTITUTION, Art. VII, Sec. 16.

[36]

Laurence Tribe notes in his opus, American Constitutional Law, that [m]ore recently, it has become the
practice to refer to the Commander in Chief Clause for whatever inherent martial authority the Executive may
possess. L. TRIBE, I AMERICAN CONSTITUTIONAL LAW, 3rd ed. (2000), at 658. A similar trend appears to
have developed in this jurisdiction.
[37]

See CONSTITUTION , Art. VII, Sec. 17.

[38]

No. L-83177, 6 December 1988, 168 SCRA 264.

[39]

Id. at 275. Emphasis supplied.

[40]

CONSTITUTION, Art. II, Sec. 3.

[41]

Schelsinger v. Councilman, 420 US 738, 757 (1975). [T]he rights of men in the armed forces must
perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the
agencies which must determine the precise balance to be struck in this adjustment. Burns v. Wilson, 346 U.S. 138,
140 (1952); citing Re: Grimley (United States v. Grimley) 137 U.S. 147, 34 L ed 636, 11 S Ct 52 (1890); Hiatt v.
Brown, 339 U.S. 103, 94 L ed. 691, 70 S Ct 495 (1950).
[42]

Id.

[43]

Parker v. Levy, 417 U.S. 733, 743 (1974).

[44]

John Keegan, A HISTORY OF WARFARE, p. xvi (1993)

[45]

See Article 65, Com. Act No. 408 (as amended)

[46]

New v. Army, 50 M.J. 729, Amry Ct. Crim. App., 1999; citing United States v. Rockwood, 48 M.J. 501,
Army Ct. Crim. App., 1998. Emphasis not ours.
[47]

See CONSTITUTION, Art. XVI, Sec. 5(3).

[48]

See Art. 63, Com. Act No. 408 (1938).

[49]

See rollo, pp. 78, 79. In their petition, petitioners admit having requested for travel authority with their
immediate superior, the PMA Superintendent. See id. at 22, 23.
[50]

See Article 8, Civil Code, in connection with Section 17, Article VII, Constitution.

[51]

Supra notes 34 & 36.

[52]

Supra note 38.

[53]

See CONSTITUTION, Art. VI, Sec. 21. See also Senate v. Ermita, supra note 11.

[54]

87 Phil. 29 (1950)

[55]

G.R. No. 89914, 20 November 1991, 203 SCRA 767.

[56]

The allocation of constitutional boundaries is a task that this Court must perform under the Constitution
The Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of
determining the scope and extent of the power of the Senate Blue Ribbon Committee to conduct inquiries into
private affairs in purported aid of legislation. Bengzon, Jr. v. Senate Blue Ribbon Committee, id., at 777.
[57]

Arnault v. Nazareno, supra note 54, at 45.

[58]

Bengzon v. Senate Blue Ribbon Committee, supra note 55, at 777.

[59]

Senate v. Ermita, supra note 11.

[60]

See e.g., Angara v. Electoral Commission, 63 Phil. 139, 156-157 (1936). Further, [t]he role of the
judiciary in mapping the metes and bounds of powers of the different branches of government was redefined in the
1987 Constitution which expanded the jurisdiction of this Court to include the determination of grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.Macalintal v. COMELEC, 453 Phil. 586, 740 (2003), J. Puno, Concurring and Dissenting Opinion.
[61]

As stated earlier though, it is controverted whether petitioners were actually aware of the directive from
the President before they testified before the Senate. See note 21. This factual matter, which will necessarily impact
on the deliberate intent of the petitioners, is for the court-martial to decide.

EN BANC

DATU ZALDY UY AMPATUAN, G.R. No. 190259


ANSARUDDIN ADIONG, REGIE
SAHALI-GENERALE
Petitioners, Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,

VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
HON. RONALDO PUNO, in his capacity
as Secretary of the Department of Interior
and Local Government and alter-ego of
President Gloria Macapagal-Arroyo,
and anyone acting in his stead and on
behalf of the President of the Philippines,
ARMED FORCES OF THE PHILIPPINES
(AFP), or any of their units operating in
the Autonomous Region in Muslim
Mindanao (ARMM), and PHILIPPINE
NATIONAL POLICE, or any of their Promulgated:
units operating in ARMM,
Respondents. June 7, 2011

x ---------------------------------------------------------------------------------------x

DECISION
ABAD, J.:

On November 24, 2009, the day after the gruesome massacre of


57 men and women, including some news reporters, then
President Gloria Macapagal-Arroyo issued Proclamation 1946,
[1]
placing the Provinces of Maguindanao and Sultan Kudarat and
the City of Cotabato under a state of emergency. She directed the
Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP) to undertake such measures as may be allowed by
the Constitution and by law to prevent and suppress all incidents
of lawless violence in the named places.

Three days later or on November 27, President Arroyo also


issued Administrative Order 273 (AO 273) [2] transferring
supervision of the Autonomous Region of Muslim Mindanao
(ARMM) from the Office of the President to the Department of
Interior and Local Government (DILG). But, due to issues raised
over the terminology used in AO 273, the President issued

Administrative Order 273-A (AO 273-A) amending the former, by


delegating instead of transferring supervision of the ARMM to the
DILG.[3]

Claiming that the Presidents issuances encroached on the ARMMs


autonomy, petitioners Datu Zaldy Uy Ampatuan, Ansaruddin
Adiong, and Regie Sahali-Generale, all ARMM officials, [4] filed this
petition for prohibition under Rule 65. They alleged that the
proclamation and the orders empowered the DILG Secretary to
take over ARMMs operations and seize the regional governments
powers, in violation of the principle of local autonomy under
Republic Act 9054 (also known as the Expanded ARMM Act) and
the Constitution. The President gave the DILG Secretary the
power to exercise, not merely administrative supervision, but
control over the ARMM since the latter could suspend ARMM
officials and replace them.[5]

Petitioner ARMM officials claimed that the President had no factual


basis for declaring a state of emergency, especially in
the Province of Sultan Kudarat and the City of Cotabato, where no
critical violent incidents occurred. The deployment of troops and
the taking over of the ARMM constitutes an invalid exercise of the
Presidents
emergency
powers.[6] Petitioners
asked
that
Proclamation 1946 as well as AOs 273 and 273-A be declared
unconstitutional and that respondents DILG Secretary, the AFP,
and the PNP be enjoined from implementing them.

In its comment for the respondents,[7] the Office of the


Solicitor General (OSG) insisted that the President issued
Proclamation 1946, not to deprive the ARMM of its autonomy, but
to restore peace and order in subject places. [8] She issued the
proclamation pursuant to her calling out power [9] as Commanderin-Chief under the first sentence of Section 18, Article VII of the

Constitution. The determination of the need to exercise this power


rests solely on her wisdom. [10] She must use her judgment based
on intelligence reports and such best information as are available
to her to call out the armed forces to suppress and prevent
lawless violence wherever and whenever these reared their ugly
heads.
On the other hand, the President merely delegated through
AOs 273 and 273-A her supervisory powers over the ARMM to the
DILG Secretary who was her alter ego any way. These orders did
not authorize a take over of the ARMM. They did not give him
blanket authority to suspend or replace ARMM officials. [11] The
delegation was necessary to facilitate the investigation of the
mass killings.[12] Further, the assailed proclamation and
administrative orders did not provide for the exercise of
emergency powers.[13]

Although normalcy has in the meantime returned to the places


subject of this petition, it might be relevant to rule on the issues
raised in this petition since some acts done pursuant to
Proclamation 1946 and AOs 273 and 273-A could impact on the
administrative and criminal cases that the government
subsequently filed against those believed affected by such
proclamation and orders.

The Issues Presented

The issues presented in this case are:


1. Whether or not Proclamation 1946 and AOs 273 and 273-A
violate the principle of local autonomy under Section 16, Article X
of the Constitution, and Section 1, Article V of the Expanded
ARMM Organic Act;

2. Whether or not President Arroyo invalidly exercised


emergency powers when she called out the AFP and the PNP to
prevent and suppress all incidents of lawless violence in
Maguindanao, Sultan Kudarat, and Cotabato City; and
3. Whether or not the President had factual bases for her
actions.

The Rulings of the Court


We dismiss the petition.

One. The claim of petitioners that the subject proclamation


and administrative orders violate the principle of local autonomy
is anchored on the allegation that, through them, the President
authorized the DILG Secretary to take over the operations of the
ARMM and assume direct governmental powers over the region.

But, in the first place, the DILG Secretary did not take over
control of the powers of the ARMM. After law enforcement agents
took respondent Governor of ARMM into custody for alleged
complicity in the Maguindanao massacre, the ARMM ViceGovernor, petitioner Ansaruddin Adiong, assumed the vacated
post on December 10, 2009 pursuant to the rule on succession
found in Article VII, Section 12,[14] of RA 9054. In turn, Acting
Governor Adiong named the then Speaker of the ARMM Regional
Assembly, petitioner Sahali-Generale, Acting ARMM ViceGovernor.[15] In short, the DILG Secretary did not take over the
administration or operations of the ARMM.

Two. Petitioners contend that the President unlawfully


exercised emergency powers when she ordered the deployment
of AFP and PNP personnel in the places mentioned in the
proclamation.[16] But such deployment is not by itself an exercise
of emergency powers as understood under Section 23 (2), Article
VI of the Constitution, which provides:

SECTION 23. x x x (2) In times of war or other national emergency,


the Congress may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers necessary
and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.

The President did not proclaim a national emergency, only a


state of emergency in the three places mentioned. And she did
not act pursuant to any law enacted by Congress that authorized
her to exercise extraordinary powers. The calling out of the armed
forces to prevent or suppress lawless violence in such places is a
power that the Constitution directly vests in the President. She did
not need a congressional authority to exercise the same.

Three. The Presidents call on the armed forces to prevent or


suppress lawless violence springs from the power vested in her
under Section 18, Article VII of the Constitution, which provides. [17]

SECTION 18. The President shall be the Commander-in-Chief of all


armed forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion. x x x

While it is true that the Court may inquire into the factual
bases for the Presidents exercise of the above power, [18] it would
generally defer to her judgment on the matter. As the Court
acknowledged in Integrated Bar of the Philippines v. Hon. Zamora,
[19]
it is clearly to the President that the Constitution entrusts the
determination of the need for calling out the armed forces to
prevent and suppress lawless violence. Unless it is shown that
such determination was attended by grave abuse of discretion,
the Court will accord respect to the Presidents judgment. Thus,
the Court said:
If the petitioner fails, by way of proof, to support the
assertion that the President acted without factual basis, then
this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be
objectively established since matters considered for satisfying
the same is a combination of several factors which are not
always accessible to the courts. Besides the absence of textual
standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also
prove unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly unavailable to
the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical
proof.

On the other hand, the President, as Commander-in-Chief


has a vast intelligence network to gather information, some of
which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, onthe-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and
mass destruction of property. Indeed, the decision to call out
the military to prevent or suppress lawless violence must be
done swiftly and decisively if it were to have any effect at all. x
x x.[20]

Here, petitioners failed to show that the declaration of a state of


emergency in the Provinces of Maguindanao, Sultan Kudarat
and Cotabato City, as well as the Presidents exercise of the calling
out power had no factual basis. They simply alleged that, since
not all areas under the ARMM were placed under a state of
emergency, it follows that the take over of the entire ARMM by
the DILG Secretary had no basis too.[21]

But, apart from the fact that there was no such take over to
begin with, the OSG also clearly explained the factual bases for
the Presidents decision to call out the armed forces, as follows:
The Ampatuan and Mangudadatu clans are prominent
families engaged in the political control of Maguindanao. It is
also a known fact that both families have an arsenal of armed
followers who hold elective positions in various parts of the
ARMM and the rest of Mindanao.

Considering the fact that the principal victims of the


brutal bloodshed are members of the Mangudadatu family and
the main perpetrators of the brutal killings are members and
followers of the Ampatuan family, both the military and police
had to prepare for and prevent reported retaliatory actions
from the Mangudadatu clan and additional offensive measures
from the Ampatuan clan.

xxxx

The Ampatuan forces are estimated to be approximately


two thousand four hundred (2,400) persons, equipped with
about two thousand (2,000) firearms, about four hundred (400)
of which have been accounted for. x x x

As for the Mangudadatus, they have an estimated one


thousand eight hundred (1,800) personnel, with about two
hundred (200) firearms. x x x

Apart from their own personal forces, both clans have


Special Civilian Auxiliary Army (SCAA) personnel who support
them: about five hundred (500) for the Ampatuans and three
hundred (300) for the Mangudadatus.

What could be worse than the armed clash of two


warring clans and their armed supporters, especially in light of
intelligence reports on the potential involvement of rebel
armed groups (RAGs).

One RAG was reported to have planned an attack on the


forces of Datu Andal Ampatuan, Sr. to show support and
sympathy for the victims. The said attack shall worsen the ageold territorial dispute between the said RAG and the Ampatuan
family.

xxxx

On the other hand, RAG faction which is based in Sultan


Kudarat was reported to have received three million pesos
(P3,000,000.00) from Datu Andal Ampatuan, Sr. for the
procurement of ammunition. The said faction is a force to
reckon with because the group is well capable of launching a
series of violent activities to divert the attention of the people
and the authorities away from the multiple murder case. x x x

In addition, two other factions of a RAG are likely to


support the Mangudadatu family. The Cotabato-based faction
has the strength of about five hundred (500) persons and
three hundred seventy-two (372) firearms while the Sultan
Kudarat-based faction has the strength of about four hundred
(400) persons and three hundred (300) firearms and was
reported to be moving towards Maguindanao to support the
Mangudadatu clan in its armed fight against the Ampatuans.[22]

In other words, the imminence of violence and anarchy at the


time the President issued Proclamation 1946 was too grave to

ignore and she had to act to prevent further bloodshed and


hostilities in the places mentioned. Progress reports also indicated
that there was movement in these places of both high-powered
firearms and armed men sympathetic to the two clans. [23] Thus, to
pacify the peoples fears and stabilize the situation, the President
had to take preventive action. She called out the armed forces to
control the proliferation of loose firearms and dismantle the
armed groups that continuously threatened the peace and
security in the affected places.

Notably, the present administration of President Benigno Aquino


III has not withdrawn the declaration of a state of emergency
under Proclamation 1946. It has been reported[24] that the
declaration would not be lifted soon because there is still a need
to disband private armies and confiscate loose firearms.
Apparently, the presence of troops in those places is still
necessary to ease fear and tension among the citizenry and
prevent and suppress any violence that may still erupt, despite
the passage of more than a year from the time of the
Maguindanao massacre.

Since petitioners are not able to demonstrate that the


proclamation of state of emergency in the subject places and the
calling out of the armed forces to prevent or suppress lawless
violence there have clearly no factual bases, the Court must
respect the Presidents actions.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO CONCHITA CARPIO MORALES


Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA


Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION


Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN


Associate Justice Associate Justice

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.


Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA


Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO


Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is


hereby certified that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the
writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

[1]

Rollo, p. 34.

[2]

Id. at 36.

[3]

Id. at 80.

[4]

Ampatuan, Adiong and Sahali-Generale were, respectively, the Governor, Vice-Governor and Speaker of the
Legislative Assembly of the ARMM at that time.
[5]

Rollo, pp. 14-17.

[6]

Id. at 20-22.

[7]

Id. at 63.

[8]

Id. at 85, 87, 95.

[9]

Id. at 98.

[10]

Id. at 76.

[11]

Id. at 95.

[12]

Id. at 78.

[13]

Id. at 110.

[14]

SEC. 12. Succession to Regional Governorship in Cases of Temporary Incapacity. In case of temporary
incapacity of the regional Governor to perform his duties on account of physical or legal causes, or when he is on
official leave of absence or on travel outside the territorial jurisdiction of the Republic of the Philippines, the
Regional Vice-Governor, or if there be none or in case of his permanent or temporary incapacity or refusal to assume
office, the Speaker of the Regional Assembly shall exercise the powers, duties and functions of the Regional
Governor as prescribed by law enacted by the Regional Assembly or in the absence thereof, by the pertinent
provisions of Republic Act 7160 or the Local Government Code of 1991.
[15]

http://services.inquirer.net/print/print.php?article_id=20100707-279759.

[16]

Rollo, p. 22.

[17]

See SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482, 509-510 (2004).

[18]

Lacson v. Sec. Perez, 410 Phil. 78, 93 (2001).

[19]

392 Phil. 618, 635 (2000).

[20]

Id. at 643-644.

[21]

Rollo, pp. 20-21.

[22]

Id. at 101-105.

[23]

Id. at 105.

[24]

http://www.abs-cbnnews.com/video/nation/regions/11/23/10/state-emergencymaguindanao-stays;
http://www.sunstar.com.ph/manila/local-news/aquino-state-emergency-maguindanao-stays;
http://www.bomboradyo.com/index.php/news/top-stories/29331-state-of-emergency-sa-cmindanao-mananatili; http://www.zambotimes.com/archives/26011-State-of-emergency-inMaguindanaoremains.html.

Republic of the Philippines


SUPREME COURT
Baguio City

FIRST DIVISION
G.R. No. 197291

April 3, 2013

DATU ANDAL AMPATUAN JR., Petitioner,


vs.
SEC. LEILA DE LIMA, as Secretary of the Department of Justice, CSP CLARO ARELLANO, as
Chief State Prosecutor, National Prosecution Service, and PANEL OF PROSECUTORS OF
THE MAGUINDANAO MASSACRE, headed by RSP PETER MEDALLE, Respondents.
DECISION
BERSAMIN, J.:
In matters involving the exercise of judgment and discretion, mandamus cannot be used to direct the
manner or the particular way the judgment and discretion are to be exercised. Consequently, the
Secretary of Justice may be compelled by writ of mandamus to act on a letter-request or a motion to
include a person in the information, but may not be compelled by writ of mandamus to act in a
certain way, i.e., to grant or deny such letter-request or motion.
The Case
This direct appeal by petition for review on certiorari has been taken from the final order issued on
June 27, 2011 in Civil Case No. 10-1247771 by the Regional Trial Court (RTC), Branch 26, in Manila,
dismissing petitioners petition for mandamus.2
Antecedents
History will never forget the atrocities perpetrated on November 23, 2009, when 57 innocent civilians
were massacred in Sitio Masalay, Municipality of Ampatuan, Maguindanao Province. Among the
principal suspects was petitioner, then the Mayor of the Municipality of Datu Unsay, Maguindanao
Province. Inquest proceedings were conducted against petitioner on November 26, 2009 at the
General Santos (Tambler) Airport Lounge, before he was flown to Manila and detained at the main
office of the National Bureau of Investigation (NBI). The NBI and the Philippine National Police
(PNP) charged other suspects, numbering more than a hundred, for what became aptly known as
the Maguindanao massacre.3
Through Department Order No. 948, then Secretary of Justice Agnes Devanadera constituted a
Special Panel of Prosecutors to conduct the preliminary investigation.
On November 27, 2009, the Department of Justice (DOJ) resolved to file the corresponding
informations for murder against petitioner, and to issue subpoenae to several persons. 4 On
December 1, 2009, 25 informations for murder were also filed against petitioner in the Regional Trial
Court, 12th Judicial Region, in Cotabato City.5
On December 3, 2009, Secretary of Justice Devanadera transmitted her letter to Chief Justice Puno
requesting the transfer of the venue of the trial of the Maguindanao massacre from Cotabato City to
Metro Manila, either in Quezon City or in Manila, to prevent a miscarriage of justice. 6 On December

8, 2009, the Court granted the request for the transfer of venue. 7 However, on December 9, 2009,
but prior to the transfer of the venue of the trial to Metro Manila, the Prosecution filed a manifestation
regarding the filing of 15 additional informations for murder against petitioner in Branch 15 of the
Cotabato City RTC.8 Later on, additional informations for murder were filed against petitioner in the
RTC in Quezon City, Branch 211, the new venue of the trial pursuant to the resolution of the Court. 9
The records show that petitioner pleaded not guilty to each of the 41 informations for murder when
he was arraigned on January 5, 2010,10 February 3, 2010,11 and July 28, 2010.12
In the joint resolution issued on February 5, 2010, the Panel of Prosecutors charged 196 individuals
with multiple murder in relation to the Maguindanao massacre.13 It appears that in issuing the joint
resolution of February 5, 2010 the Panel of Prosecutors partly relied on the twin affidavits of one
Kenny Dalandag, both dated December 7, 2009.14
On August 13, 2010, Dalandag was admitted into the Witness Protection Program of the DOJ. 15 On
September 7, 2010, the QC RTC issued its amended pre-trial order,16 wherein Dalandag was listed
as one of the Prosecution witnesses.17
On October 14, 2010, petitioner, through counsel, wrote to respondent Secretary of Justice Leila De
Lima and Assistant Chief State Prosecutor Richard Fadullon to request the inclusion of Dalandag in
the informations for murder considering that Dalandag had already confessed his participation in the
massacre through his two sworn declarations.18 Petitioner reiterated the request twice more on
October 22, 201019 and November 2, 2010.20
By her letter dated November 2, 2010,21 however, Secretary De Lima denied petitioners request.
Accordingly, on December 7, 2010, petitioner brought a petition for mandamus in the RTC in Manila
(Civil Case No. 10-124777),22 seeking to compel respondents to charge Dalandag as another
accused in the various murder cases undergoing trial in the QC RTC.
On January 19, 2011,23 the RTC in Manila set a pre-trial conference on January 24, 2011 in Civil
Case No. 10-124777. At the close of the pre-trial, the RTC in Manila issued a pre-trial order.
In their manifestation and motion dated February 15, 201124 and February 18, 2011,25 respondents
questioned the propriety of the conduct of a trial in a proceeding for mandamus. Petitioner opposed.
On February 15, 2011, petitioner filed a motion for the production of documents, 26 which the RTC in
Manila granted on March 21, 2011 after respondents did not file either a comment or an opposition.
Respondents then sought the reconsideration of the order of March 21, 2011.
On March 21, 2011,27 the RTC in Manila issued a subpoena to Dalandag, care of the Witness
Protection Program of the DOJ, requiring him to appear and testify on April 4, 2011 in Civil Case No.
10-124777.
On April 4, 2011, respondents moved to quash the subpoena. 28 Petitioner opposed the motion to
quash the subpoena on April 15, 2011.29 The parties filed other papers, specifically, respondents their

reply dated April 26, 2011;30 petitioner an opposition on May 12, 2011;31 and respondents another
reply dated May 20, 2011.32
On June 27, 2011,33 the RTC of Manila issued the assailed order in Civil Case No. 10-124777
dismissing the petition for mandamus.34
Hence, this appeal by petition for review on certiorari.
Issues
Petitioner raises the following issues, to wit:
1. WHETHER THE PUBLIC RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO
INVESTIGATE AND PROSECUTE KENNY DALANDAG AS AN ACCUSED IN THE INFORMATIONS
FOR MULTIPLE MURDER IN THE MAGUINADANAO MASSACRE CASES IN LIGHT OF HIS
ADMITTED PARTICIPATION THEREAT IN AFFIDAVITS AND OFFICIAL RECORDS FILED WITH
THE PROSECUTOR AND THE QC RTC; and,
2. WHETHER THE SUBSEQUENT INCLUSION OF KENNY DALANDAG IN THE WITNESS
PROTECTION PROGRAM JUSTIFIES EXCLUSION AS AN ACCUSED AND HIS NONINDICTMENT FOR HIS COMPLICITY IN THE MAGUINDANAO MASSACRE NOTWITHSTANDING
ADMISSIONS MADE THAT HE TOOK PART IN ITS PLANNING AND EXECUTION.35
The crucial issue is whether respondents may be compelled by writ of mandamus to charge
Dalandag as an accused for multiple murder in relation to the Maguindanao massacre despite his
admission to the Witness Protection Program of the DOJ.
Ruling
The appeal lacks merit.
The prosecution of crimes pertains to the Executive Department of the Government whose principal
power and responsibility are to see to it that our laws are faithfully executed. A necessary component
of the power to execute our laws is the right to prosecute their violators. The right to prosecute vests
the public prosecutors with a wide range of discretion the discretion of what and whom to charge,
the exercise of which depends on a smorgasbord of factors that are best appreciated by the public
prosecutors.36
The public prosecutors are solely responsible for the determination of the amount of evidence
sufficient to establish probable cause to justify the filing of appropriate criminal charges against a
respondent. Theirs is also the quasi-judicial discretion to determine whether or not criminal cases
should be filed in court.37
Consistent with the principle of separation of powers enshrined in the Constitution, the Court deems
it a sound judicial policy not to interfere in the conduct of preliminary investigations, and to allow the
Executive Department, through the Department of Justice, exclusively to determine what constitutes
sufficient evidence to establish probable cause for the prosecution of supposed offenders. By way of
exception, however, judicial review may be allowed where it is clearly established that the public

prosecutor committed grave abuse of discretion, that is, when he has exercised his discretion "in an
arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility, patent
and gross enough as to amount to an evasion of a positive duty or virtual refusal to perform a duty
enjoined by law."38
The records herein are bereft of any showing that the Panel of Prosecutors committed grave abuse
of discretion in identifying the 196 individuals to be indicted for the Maguindanao massacre. It is
notable in this regard that petitioner does not assail the joint resolution recommending such number
of individuals to be charged with multiple murder, but only seeks to have Dalandag be also
investigated and charged as one of the accused based because of his own admissions in his sworn
declarations. However, his exclusion as an accused from the informations did not at all amount to
grave abuse of discretion on the part of the Panel of Prosecutors whose procedure in excluding
Dalandag as an accused was far from arbitrary, capricious, whimsical or despotic. Section 2, Rule
110 of the Rules of Court, which requires that "the complaint or information shall be xxx against all
persons who appear to be responsible for the offense involved," albeit a mandatory provision, may
be subject of some exceptions, one of which is when a participant in the commission of a crime
becomes a state witness.
The two modes by which a participant in the commission of a crime may become a state witness
are, namely: (a) by discharge from the criminal case pursuant to Section 17 of Rule 119 of the Rules
of Court; and (b) by the approval of his application for admission into the Witness Protection
Program of the DOJ in accordance with Republic Act No. 6981 (The Witness Protection, Security
and Benefit Act).39 These modes are intended to encourage a person who has witnessed a crime or
who has knowledge of its commission to come forward and testify in court or quasi-judicial body, or
before an investigating authority, by protecting him from reprisals, and shielding him from economic
dislocation.
These modes, while seemingly alike, are distinct and separate from each other.
Under Section 17, Rule 119 of the Rules of Court, the discharge by the trial court of one or more of
several accused with their consent so that they can be witnesses for the State is made upon motion
by the Prosecution before resting its case. The trial court shall require the Prosecution to present
evidence and the sworn statements of the proposed witnesses at a hearing in support of the
discharge. The trial court must ascertain if the following conditions fixed by Section 17 of Rule 119
are complied with, namely: (a) there is absolute necessity for the testimony of the accused whose
discharge is requested; (b) there is no other direct evidence available for the proper prosecution of
the offense committed, except the testimony of said accused; (c) the testimony of said accused can
be substantially corroborated in its material points; (d) said accused does not appear to be most
guilty; and (e) said accused has not at any time been convicted of any offense involving moral
turpitude.
On the other hand, Section 10 of Republic Act No. 6981 provides:
Section 10. State Witness. Any person who has participated in the commission of a crime and
desires to be a witness for the State, can apply and, if qualified as determined in this Act and by the
Department, shall be admitted into the Program whenever the following circumstances are present:
a. the offense in which his testimony will be used is a grave felony as defined under the Revised
Penal Code or its equivalent under special laws;

b. there is absolute necessity for his testimony;


c. there is no other direct evidence available for the proper prosecution of the offense committed;
d. his testimony can be substantially corroborated on its material points;
e. he does not appear to be most guilty; and
f. he has not at any time been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in order that he may
be a State Witness pursuant to Section 9 and 10 of Rule 119 of the Revised Rules of Court may
upon his petition be admitted to the Program if he complies with the other requirements of this Act.
Nothing in this Act shall prevent the discharge of an accused, so that he can be used as a State
Witness under Rule 119 of the Revised Rules of Court.
Save for the circumstance covered by paragraph (a) of Section 10, supra, the requisites under both
rules are essentially the same. Also worth noting is that an accused discharged from an information
by the trial court pursuant to Section 17 of Rule 119 may also be admitted to the Witness Protection
Program of the DOJ provided he complies with the requirements of Republic Act No. 6981.
A participant in the commission of the crime, to be discharged to become a state witness pursuant to
Rule 119, must be one charged as an accused in the criminal case. The discharge operates as an
acquittal of the discharged accused and shall be a bar to his future prosecution for the same offense,
unless he fails or refuses to testify against his co-accused in accordance with his sworn statement
constituting the basis for his discharge.40The discharge is expressly left to the sound discretion of the
trial court, which has the exclusive responsibility to see to it that the conditions prescribed by the
rules for that purpose exist.41
While it is true that, as a general rule, the discharge or exclusion of a co-accused from the
information in order that he may be utilized as a Prosecution witness rests upon the sound discretion
of the trial court,42 such discretion is not absolute and may not be exercised arbitrarily, but with due
regard to the proper administration of justice.43 Anent the requisite that there must be an absolute
necessity for the testimony of the accused whose discharge is sought, the trial court has to rely on
the suggestions of and the information provided by the public prosecutor. The reason is obvious
the public prosecutor should know better than the trial court, and the Defense for that matter, which
of the several accused would best qualify to be discharged in order to become a state witness. The
public prosecutor is also supposed to know the evidence in his possession and whomever he needs
to establish his case,44 as well as the availability or non-availability of other direct or corroborative
evidence, which of the accused is the most guilty one, and the like.45
On the other hand, there is no requirement under Republic Act No. 6981 for the Prosecution to first
charge a person in court as one of the accused in order for him to qualify for admission into the
Witness Protection Program. The admission as a state witness under Republic Act No. 6981 also
operates as an acquittal, and said witness cannot subsequently be included in the criminal
information except when he fails or refuses to testify. The immunity for the state witness is granted
by the DOJ, not by the trial court. Should such witness be meanwhile charged in court as an
accused, the public prosecutor, upon presentation to him of the certification of admission into the

Witness Protection Program, shall petition the trial court for the discharge of the witness. 46 The Court
shall then order the discharge and exclusion of said accused from the information. 47
The admission of Dalandag into the Witness Protection Program of the Government as a state
witness since August 13, 2010 was warranted by the absolute necessity of his testimony to the
successful prosecution of the criminal charges. Apparently, all the conditions prescribed by Republic
Act No. 6981 were met in his case. That he admitted his participation in the commission of the
Maguindanao massacre was no hindrance to his admission into the Witness Protection Program as
a state witness, for all that was necessary was for him to appear not the most guilty. Accordingly, he
could not anymore be charged for his participation in the Maguindanao massacre, as to which his
admission operated as an acquittal, unless he later on refuses or fails to testify in accordance with
the sworn statement that became the basis for his discharge against those now charged for the
crimes.
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects
the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or
station. It is proper when the act against which it is directed is one addressed to the discretion of the
tribunal or officer. In matters involving the exercise of judgment and discretion, mandamus may only
be resorted to in order to compel respondent tribunal, corporation, board, officer or person to take
action, but it cannot be used to direct the manner or the particular way discretion is to be
exercised,48or to compel the retraction or reversal of an action already taken in the exercise of
judgment or discretion.49
As such, respondent Secretary of Justice may be compelled to act on the letter-request of petitioner,
but may not be compelled to act in a certain way, i.e., to grant or deny such letter-request.
Considering that respondent Secretary of Justice already denied the letter-request, mandamus was
no longer available as petitioner's recourse.
WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the final order
issued on June 27, 2011 in Civil Case No. 10-124777 by the Regional Trial Court in Manila; and
ORDERS petitioner to pay the costs of suit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 187298

July 03, 2012

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN AWADI,
and SPO1 SATTAL H. JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO SABAN,
COL. EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT. BIENVENIDO G.
LATAG, in their capacity as officers of the Phil. Marines and Phil. National Police,
respectively, Respondents.

DECISION
SERENO, J.:
On 15 January 2009, three members from the International Committee of the Red Cross (ICRC)
were kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu. 1 Andres Notter, a Swiss
national and head of the ICRC in Zamboanga City, Eugenio Vagni, an Italian national and ICRC
delegate, and Marie Jean Lacaba, a Filipino engineer, were purportedly inspecting a water and
sanitation project for the Sulu Provincial Jail when inspecting a water and sanitation project for the
Sulu Provincial Jail when they were seized by three armed men who were later confirmed to be
members of the Abu Sayyaf Group (ASG).2 The leader of the alleged kidnappers was identified as
Raden Abu, a former guard at the Sulu Provincial Jail. News reports linked Abu to Albader Parad,
one of the known leaders of the Abu Sayyaf.
On 21 January 2009, a task force was created by the ICRC and the Philippine National Police
(PNP), which then organized a parallel local group known as the Local Crisis Committee. 3 The local
group, later renamed Sulu Crisis Management Committee, convened under the leadership of
respondent Abdusakur Mahail Tan, the Provincial Governor of Sulu. Its armed forces component was
headed by respondents General Juancho Saban, and his deputy, Colonel Eugenio Clemen. The
PNP component was headed by respondent Police Superintendent Bienvenido G. Latag, the Police
Deputy Director for Operations of the Autonomous Region of Muslim Mindanao (ARMM). 4
Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians
coming from different municipalities, who were redeployed to surrounding areas of Patikul. 5 The
organization of the CEF was embodied in a "Memorandum of Understanding" 6 entered into
between three parties: the provincial government of Sulu, represented by Governor Tan; the Armed
Forces of the Philippines, represented by Gen. Saban; and the Philippine National Police,
represented by P/SUPT. Latag. The Whereas clauses of the Memorandum alluded to the
extraordinary situation in Sulu, and the willingness of civilian supporters of the municipal mayors to
offer their services in order that "the early and safe rescue of the hostages may be achieved." 7
This Memorandum, which was labeled secret on its all pages, also outlined the responsibilities of
each of the party signatories, as follows:
Responsibilities of the Provincial Government:
1) The Provincial Government shall source the funds and logistics needed for the activation
of the CEF;
2) The Provincial Government shall identify the Local Government Units which shall
participate in the operations and to propose them for the approval of the parties to this
agreement;
3) The Provincial Government shall ensure that there will be no unilateral action(s) by the
CEF without the knowledge and approval by both parties.
Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):

1) The AFP/PNP shall remain the authority as prescribed by law in military operations and
law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of their
assigned task(s);
3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of
operation(s);
4) The AFP/PNP shall provide the necessary support and/or assistance as called for in the
course of operation(s)/movements of the CEF.8
Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local Government,
announced to the media that government troops had cornered some one hundred and twenty (120)
Abu Sayyaf members along with the three (3) hostages. 9 However, the ASG made
contact with the authorities and demanded that the military pull its troops back from the jungle
area.10 The government troops yielded and went back to their barracks; the Philippine Marines
withdrew to their camp, while police and civilian forces pulled back from the terrorists stronghold by
ten (10) to fifteen (15) kilometers. Threatening that one of the hostages will be beheaded, the ASG
further demanded the evacuation of the military camps and bases in the different barangays in
Jolo.11 The authorities were given no later than 2:00 oclock in the afternoon of 31 March 2009 to
comply.12
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-09),
declaring a state of emergency in the province of Sulu.13 It cited the kidnapping incident as a ground
for the said declaration, describing it as a terrorist act pursuant to the Human Security
Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160),
which bestows on the Provincial Governor the power to carry out emergency measures during manmade and natural disasters and calamities, and to call upon the appropriate national law
enforcement agencies to suppress disorder and lawless violence.
In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up checkpoints
and chokepoints, conduct general search and seizures including arrests, and other actions
necessary to ensure public safety. The pertinent portion of the proclamation states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR
MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF
EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL POLICE
WITH THE ASSISTANCE OF THE ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN
EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the province;
2. The imposition of curfew for the entire province subject to such Guidelines as may be
issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of the
kidnappers and their supporters; and
4. To conduct such other actions or police operations as may be necessary to ensure public
safety.
DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS
31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent P/SUPT.
Julasirim Kasim.15 Upon arriving at the police station, he was booked, and interviewed about his
relationship to Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon admitting that
he was indeed related to the three, he was detained. After a few hours, former Punong Barangay
Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3
Muhilmi Ismula, Punong Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani, were
also arrested.16 The affidavit17 of the apprehending officer alleged that they were suspected ASG
supporters and were being arrested under Proclamation 1-09. The following day, 2 April 2009, the
hostage Mary Jane Lacaba was released by the ASG.
On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of the
"Guidelines for the Implementation of Proclamation No. 1, Series of 2009 Declaring a State of
Emergency in the Province of Sulu."18These Guidelines suspended all Permits to Carry
Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed civilians to
seek exemption from the gun ban only by applying to the Office of the Governor and obtaining the
appropriate identification cards. The said guidelines also allowed general searches and seizures in
designated checkpoints and chokepoints.
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi, Ahajan
Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present Petition for Certiorari
and Prohibition,19claiming that Proclamation 1-09 was issued with grave abuse of discretion
amounting to lack or excess of jurisdiction, as it threatened fundamental freedoms guaranteed under
Article III of the 1987 Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were issued ultra vires,
and thus null and void, for violating Sections 1 and 18, Article VII of the Constitution, which grants
the President sole authority to exercise emergency powers and calling-out powers as the chief
executive of the Republic and commander-in-chief of the armed forces. 20 Additionally, petitioners
claim that the Provincial Governor is not authorized by any law to create civilian armed forces under
his command, nor regulate and limit the issuances of PTCFORs to his own private army.
In his Comment, Governor Tan contended that petitioners violated the doctrine on hierarchy of courts
when they filed the instant petition directly in the court of last resort, even if both the Court of
Appeals (CA) and the Regional Trial Courts (RTC) possessed concurrent jurisdiction with the
Supreme Court under Rule 65.21 This is the only procedural defense raised by respondent Tan.
Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT. Julasirim Kasim, and P/SUPT.
Bienvenido Latag did not file their respective Comments.
1wphi1

On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra vires, as
Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local Government Code,
which empowers the Provincial Governor to carry out emergency measures during calamities and
disasters, and to call upon the appropriate national law enforcement agencies to suppress disorder,
riot, lawless violence, rebellion or sedition.22Furthermore, the Sangguniang Panlalawigan of Sulu
authorized the declaration of a state of emergency as evidenced by Resolution No. 4, Series of 2009
issued on 31 March 2009 during its regular session. 23
The threshold issue in the present case is whether or not Section 465, in relation to Section 16, of
the Local Government Code authorizes the respondent governor to declare a state of emergency,
and exercise the powers enumerated under Proclamation 1-09, specifically the conduct of general
searches and seizures. Subsumed herein is the secondary question of whether or not the provincial
governor is similarly clothed with authority to convene the CEF under the said provisions.
We grant the petition.
I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy of Courts
We first dispose of respondents invocation of the doctrine of hierarchy of courts which allegedly
prevents judicial review by this Court in the present case, citing for this specific purpose, Montes v.
Court of Appeals and Purok Bagong Silang Association, Inc. v. Yuipco. 24 Simply put, the
doctrine provides that where the issuance of an extraordinary writ is also within the competence of
the CA or the RTC, it is in either of these courts and not in the Supreme Court, that the specific
action for the issuance of such writ must be sought unless special and important laws are clearly and
specifically set forth in the petition. The reason for this is that this Court is a court of last resort and
must so remain if it is to perform the functions assigned to it by the Constitution and immemorial
tradition. It cannot be burdened with deciding cases in the first instance. 25
The said rule, however, is not without exception. In Chavez v. PEA-Amari, 26 the Court stated:
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the
Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As it
is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case,
however, raises constitutional questions of transcendental importance to the public. The Court can
resolve this case without determining any factual issue related to the case. Also, the instant case is a
petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article
VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case. 27
The instant case stems from a petition for certiorari and prohibition, over which the Supreme Court
possesses original jurisdiction.28 More crucially, this case involves acts of a public official which
pertain to restrictive custody, and is thus impressed with transcendental public importance that would
warrant the relaxation of the general rule. The Court would be remiss in its constitutional duties were
it to dismiss the present petition solely due to claims of judicial hierarchy.
In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public importance involved
in cases that concern restrictive custody, because judicial review in these cases serves as "a
manifestation of the crucial defense of civilians in police power cases due to the diminution of their
basic liberties under the guise of a state of emergency."30 Otherwise, the importance of the high

tribunal as the court of last resort would be put to naught, considering the nature of "emergency"
cases, wherein the proclamations and issuances are inherently short-lived. In finally disposing of the
claim that the issue had become moot and academic, the Court also cited transcendental public
importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga
(restrictive custody) at pagmonitor ng galaw (monitoring of movements) ng nagpepetisyon,
dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng madla na nakapaloob dito,
(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang
kapulisan tungkol dito.
The moot and academic principle is not a magical formula that can automatically dissuade the courts
in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the paramount
public interest is involved; third, when [the] constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of
repetition yet evading review.
There is no question that the issues being raised affect the public interest, involving as they do the
peoples basic rights to freedom of expression, of assembly and of the press. Moreover, the
Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It
has the symbolic function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by constitutional guarantees. And lastly,
respondents contested actions are capable of repetition. Certainly, the petitions are subject to
judicial review.
Evidently, the triple reasons We advanced at the start of Our ruling are justified under the foregoing
exceptions. Every bad, unusual incident where police officers figure in generates public interest and
people watch what will be done or not done to them. Lack of disciplinary steps taken against them
erode public confidence in the police institution. As petitioners themselves assert, the restrictive
custody of policemen under investigation is an existing practice, hence, the issue is bound to crop up
every now and then. The matter is capable of repetition or susceptible of recurrence. It better be
resolved now for the education and guidance of all concerned. 31 (Emphasis supplied)
Hence, the instant petition is given due course, impressed as it is with transcendental public
importance.
II. Only the President is vested with calling-out powers, as the commander-in-chief of the Republic
i. One executive, one commander-in-chief
As early as Villena v. Secretary of Interior,32 it has already been established that there is one
repository of executive powers, and that is the President of the Republic. This means that when
Section 1, Article VII of the Constitution speaks of executive power, it is granted to the President and
no one else.33 As emphasized by Justice Jose P. Laurel, in his ponencia in Villena:

With reference to the Executive Department of the government, there is one purpose which is
crystal-clear and is readily visible without the projection of judicial searchlight, and that is the
establishment of a single, not plural, Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the enunciation of the principle that "The
executive power shall be vested in a President of the Philippines." This means that the President of
the Philippines is the Executive of the Government of the Philippines, and no other.34
Corollarily, it is only the President, as Executive, who is authorized to exercise emergency powers as
provided under Section 23, Article VI, of the Constitution, as well as what became known as the
calling-out powers under Section 7, Article VII thereof.
ii. The exceptional character of Commander-in-Chief powers dictate that they are exercised by one
president
Springing from the well-entrenched constitutional precept of One President is the notion that there
are certain acts which, by their very nature, may only be performed by the president as the Head of
the State. One of these acts or prerogatives is the bundle of Commander-in-Chief powers to which
the "calling-out" powers constitutes a portion. The Presidents Emergency Powers, on the other
hand, is balanced only by the legislative act of Congress, as embodied in the second paragraph of
Section 23, Article 6 of the Constitution:
Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment
thereof.35
Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call. 36
The power to declare a state of martial law is subject to the Supreme Courts authority to review the
factual basis thereof. 37 By constitutional fiat, the calling-out powers, which is of lesser gravity than
the power to declare martial law, is bestowed upon the President alone. As noted in Villena, "(t)here
are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must
be exercised by him in person and no amount of approval or ratification will validate the exercise of

any of those powers by any other person. Such, for instance, is his power to suspend the writ of
habeas corpus and proclaim martial law x x x.38
Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution mandates that
civilian authority is, at all times, supreme over the military, making the civilian president the nations
supreme military leader. The net effect of Article II, Section 3, when read with Article VII,
Section 18, is that a civilian President 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 command of the
armed forces to military experts; but the ultimate power is his.40 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.41
In the case of Integrated Bar of the Philippines v. Zamora, 42 the Court had occasion to rule that the
calling-out powers belong solely to the President as commander-in-chief:
When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be
called upon to overrule the Presidents wisdom or substitute its own. However, this does not prevent
an examination of whether such power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon the petitioner to show that the Presidents decision
is totally bereft of factual basis.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise of
such power.43 (Emphasis supplied)
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the Presidents action to call out the armed forces.
The distinction places the calling out power in a different category from the power to declare martial
law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the Constitution would have simply lumped together the three powers and provided for their
revocation and review without any qualification. 44
That the power to call upon the armed forces is discretionary on the president is clear from the
deliberation of the Constitutional Commission:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the
President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to
suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he
can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of
habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme
Court and subject to concurrence by the National Assembly. But when he exercises this lesser power
of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment
cannot be reviewed by anybody.
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MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.
The reason for the difference in the treatment of the aforementioned powers highlights the intent to
grant the President the widest leeway and broadest discretion in using the power to call out because
it is considered as the lesser and more benign power compared to the power to suspend the
privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and individual freedoms, and thus
necessitating safeguards by Congress and review by this Court.
x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commanderin-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence, invasion or
rebellion.45(Emphasis Supplied)
In the more recent case of Constantino, Jr. v. Cuisia, 46 the Court characterized these powers as
exclusive to the President, precisely because they are of exceptional import:
These distinctions hold true to this day as they remain embodied in our fundamental law. There are
certain presidential powers which arise out of exceptional circumstances, and if exercised, would
involve the suspension of fundamental freedoms, or at least call for the supersedence of executive
prerogatives over those exercised by co-equal branches of government. The declaration of martial
law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power,
notwithstanding the judicial determination of guilt of the accused, all fall within this special class that
demands the exclusive exercise by the President of the constitutionally vested power. The list is by
no means exclusive, but there must be a showing that the executive power in question is of
similargravitas and exceptional import.47
In addition to being the commander-in-chief of the armed forces, the President also acts as the
leader of the countrys police forces, under the mandate of Section 17, Article VII of the Constitution,
which provides that, "The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed." During the deliberations of the
Constitutional Commission on the framing of this provision, Fr. Bernas defended the retention of the
word "control," employing the same rationale of singularity of the office of the president, as the only
Executive under the presidential form of government.48
Regarding the countrys police force, Section 6, Article XVI of the Constitution states that: "The State
shall establish and maintain one police force, which shall be national in scope and civilian in
character, to be administered and controlled by a national police commission. The authority of local
executives over the police units in their jurisdiction shall be provided by law." 49

A local chief executive, such as the provincial governor, exercises operational supervision over the
police,50 and may exercise control only in day-to-day operations, viz:
Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or by law full
control of the police by the local chief executive and local executives, the mayors. By our
experience, this has spawned warlordism, bossism and sanctuaries for vices and abuses. If the
national government does not have a mechanism to supervise these 1,500 legally, technically
separate police forces, plus 61 city police forces, fragmented police system, we will have a lot of
difficulty in presenting a modern professional police force. So that a certain amount of supervision
and control will have to be exercised by the national government.
For example, if a local government, a town cannot handle its peace and order problems or police
problems, such as riots, conflagrations or organized crime, the national government may come in,
especially if requested by the local executives. Under that situation, if they come in under such an
extraordinary situation, they will be in control. But if the day-to-day business of police investigation of
crime, crime prevention, activities, traffic control, is all lodged in the mayors, and if they are in
complete operational control of the day-to-day business of police service, what the national
government would control would be the administrative aspect.
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Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual duties being
performed by the ordinary policemen, will be under the supervision of the local executives?
Mr. Natividad: Yes, Madam President.
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Mr. de los Reyes: But in exceptional cases, even the operational control can be taken over by the
National Police Commission?
Mr. Natividad: If the situation is beyond the capacity of the local governments. 51 (Emphases supplied)
Furthermore according to the framers, it is still the President who is authorized to exercise
supervision and control over the police, through the National Police Commission:
Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-in-Chief of all
the armed forces.
Mr. Natividad: Yes, Madam President.
Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not suppose they
come under the Commander-in-Chief powers of the President of the Philippines.
Mr. Natividad: They do, Madam President. By law, they are under the supervision and control of the
President of the Philippines.
Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police.

Mr. Natividad: He is the President.


Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that the
President is the Commander-in-Chief of all the armed forces.
Mr. Natividad: No, not under the Commander-in-Chief provision.
Mr. Rodrigo: There are two other powers of the President. The
President has control over ministries, bureaus and offices, and supervision over local governments.
Under which does the police fall, under control or under supervision?
Mr. Natividad: Both, Madam President.
Mr. Rodrigo: Control and supervision.
Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the President. 52
In the discussions of the Constitutional Commission regarding the above provision it is clear that the
framers never intended for local chief executives to exercise unbridled control over the police in
emergency situations.This is without prejudice to their authority over police units in their jurisdiction
as provided by law, and their prerogative to seek assistance from the police in day to day situations,
as contemplated by the Constitutional Commission. But as a civilian agency of the government, the
police, through the NAPOLCOM, properly comes within, and is subject to, the exercise by the
President of the power of executive control.53
iii. The provincial governor does not possess the same calling-out powers as the President
Given the foregoing, respondent provincial governor is not endowed with the power to call upon the
armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his
authority when he declared a state of emergency and called upon the Armed Forces, the police, and
his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is
exclusive to the President. An exercise by another official, even if he is the local chief executive, is
ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code,
as will be discussed subsequently.
Respondents, however, justify this stance by stating that nowhere in the seminal case of David v.
Arroyo, which dealt squarely with the issue of the declaration of a state of emergency, does it limit
the said authority to the President alone. Respondents contend that the ruling in David expressly
limits the authority to declare a national emergency, a condition which covers the entire country, and
does not include emergency situations in local government units.54 This claim is belied by the clear
intent of the framers that in all situations involving threats to security, such as lawless violence,
invasion or rebellion, even in localized areas, it is still the President who possesses the sole
authority to exercise calling-out powers. As reflected in the Journal of the Constitutional Commission:
Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in lieu of
"invasion or rebellion." Mr. Sumulong stated that the committee could not accept the amendment
because under the first section of Section 15, the President may call out and make use of the armed

forces to prevent or suppress not only lawless violence but even invasion or rebellion without
declaring martial law. He observed that by deleting "invasion or rebellion" and substituting PUBLIC
DISORDER, the President would have to declare martial law before he can make use of the armed
forces to prevent or suppress lawless invasion or rebellion.
Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter situation where
there is some lawless violence in a small portion of the country or public disorder in another at which
times, the armed forces can be called to prevent or suppress these incidents. He noted that the
Commander-in-Chief can do so in a minor degree but he can also exercise such powers should the
situation worsen. The words "invasion or rebellion" to be eliminated on line 14 are covered by the
following sentence which provides for "invasion or rebellion." He maintained that the proposed
amendment does not mean that under such circumstances, the President cannot call on the armed
forces to prevent or suppress the same.55 (Emphasis supplied)
III. Section 465 of the Local
Government Code cannot be invoked to justify the powers enumerated under Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic act,
and used this incident to justify the exercise of the powers enumerated under Proclamation 109.56 He invokes Section 465, in relation to Section 16, of the Local Government Code, which
purportedly allows the governor to carry out emergency measures and call upon the appropriate
national law enforcement agencies for assistance. But a closer look at the said proclamation shows
that there is no provision in the Local Government Code nor in any law on which the broad and
unwarranted powers granted to the Governor may be based.
Petitioners cite the implementation of "General Search and Seizure including arrests in the pursuit of
the kidnappers and their supporters,"57 as being violative of the constitutional proscription on general
search warrants and general seizures. Petitioners rightly assert that this alone would be sufficient to
render the proclamation void, as general searches and seizures are proscribed, for being violative of
the rights enshrined in the Bill of Rights, particularly:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.58
In fact, respondent governor has arrogated unto himself powers exceeding even the martial law
powers of the President, because as the Constitution itself declares, "A state of martial law does not
suspend the operation of the Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ."59
We find, and so hold, that there is nothing in the Local Government Code which justifies the acts
sanctioned under the said Proclamation. Not even Section 465 of the said Code, in relation to
Section 16, which states:

Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.
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(b) For efficient, effective and economical governance the purpose of which is the general welfare of
the province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall:
(1) Exercise general supervision and control over all programs, projects, services, and activities of
the provincial government, and in this connection, shall:
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(vii) Carry out such emergency measures as may be necessary during and in the aftermath of manmade and natural disasters and calamities;
(2) Enforce all laws and ordinances relative to the governance of the province and the exercise of
the appropriate corporate powers provided for under Section 22 of this Code, implement all
approved policies, programs, projects, services and activities of the province and, in addition to the
foregoing, shall:
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(vi) Call upon the appropriate national law enforcement agencies to suppress disorder, riot, lawless
violence, rebellion or sedition or to apprehend violators of the law when public interest so requires
and the police forces of the component city or municipality where the disorder or violation is
happening are inadequate to cope with the situation or the violators.
Section 16. General Welfare. - Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
(Emphases supplied)
Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the said
provision expressly refers to calamities and disasters, whether man-made or natural. The governor,
as local chief executive of the province, is certainly empowered to enact and implement emergency
measures during these occurrences. But the kidnapping incident in the case at bar cannot be
considered as a calamity or a disaster. Respondents cannot find any legal mooring under this
provision to justify their actions.
Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two reasons. First,
the Armed Forces of the Philippines does not fall under the category of a "national law enforcement
agency," to which the National Police Commission (NAPOLCOM) and its departments belong.

Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and defend the
Republic against all enemies, foreign and domestic. Its aim is also to secure the integrity of the
national territory.60
Second, there was no evidence or even an allegation on record that the local police forces were
inadequate to cope with the situation or apprehend the violators. If they were inadequate, the
recourse of the provincial governor was to ask the assistance of the Secretary of Interior and Local
Government, or such other authorized officials, for the assistance of national law enforcement
agencies.
The Local Government Code does not involve the diminution of central powers inherently vested in
the National Government, especially not the prerogatives solely granted by the Constitution to the
President in matters of security and defense.
The intent behind the powers granted to local government units is fiscal, economic, and
administrative in nature. The Code is concerned only with powers that would make the delivery of
basic services more effective to the constituents,61 and should not be unduly stretched to confer
calling-out powers on local executives.
1wphi1

In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of powers is a
step towards the autonomy of local government units (LGUs), and is actually an experiment whose
success heavily relies on the power of taxation of the LGUs. The underpinnings of the Code can be
found in Section 5, Article II of the 1973 Constitution, which allowed LGUs to create their own
sources of revenue.62 During the interpellation made by Mr. Tirol addressed to Mr. de Pedro, the
latter emphasized that "Decentralization is an administrative concept and the process of shifting and
delegating power from a central point to subordinate levels to promote independence, responsibility,
and quicker decision-making. (I)t does not involve any transfer of final authority from the national
to field levels, nor diminution of central office powers and responsibilities. Certain government
agencies, including the police force, are exempted from the decentralization process because their
functions are not inherent in local government units."63
IV. Provincial governor is not authorized to convene CEF
Pursuant to the national policy to establish one police force, the organization of private citizen armies
is proscribed. Section 24 of Article XVIII of the Constitution mandates that:
Private armies and other armed groups not recognized by duly constituted authority shall be
dismantled. All paramilitary forces including Civilian Home Defense Forces (CHDF) not consistent
with the citizen armed force established in this Constitution, shall be dissolved or, where appropriate,
converted into the regular force.
Additionally, Section 21of Article XI states that, "The preservation of peace and order within the
regions shall be the responsibility of the local police agencies which shall be organized, maintained,
supervised, and utilized in accordance with applicable laws. The defense and security of the regions
shall be the responsibility of the National Government."
Taken in conjunction with each other, it becomes clear that the Constitution does not authorize the
organization of private armed groups similar to the CEF convened by the respondent Governor. The

framers of the Constitution were themselves wary of armed citizens groups, as shown in the
following proceedings:
MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force operating
under the cloak, under the mantle of legality is creating a lot of problems precisely by being able to
operate as an independent private army for many regional warlords. And at the same time, this I
think has been the thrust, the intent of many of the discussions and objections to the paramilitary
units and the armed groups.
MR. PADILLA: My proposal covers two parts: the private armies of political warlords and other
armed torces not recognized by constituted authority which shall be dismantled and dissolved. In my
trips to the provinces, I heard of many abuses committed by the CHDF (Civilian Home Defense
Forces), specially in Escalante, Negros Occidental. But I do not know whether a particular CHDF is
approved or authorized by competent authority. If it is not authorized, then the CHDF will have to be
dismantled. If some CHDFs, say in other provinces, are authorized by constituted authority, by the
Armed Forces of the Philippines, through the Chief of Staff or the Minister of National Defense, if
they are recognized and authorized, then they will not be dismantled. But I cannot give a categorical
answer to any specific CHDF unit, only the principle that if they are armed forces which are not
authorized, then they should be dismantled. 64 (Emphasis supplied)
Thus, with the discussions in the Constitutional Commission as guide, the creation of the Civilian
Emergency Force (CEF) in the present case, is also invalid.
WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding respondents to
desist from further proceedings m implementing Proclamation No. 1, Series of 2009, and its
Implementing Guidelines. The said proclamation and guidelines are hereby declared NULL and
VOID for having been issued in grave abuse of discretion, amounting to lack or excess of
jurisdiction.
SO ORDERED.

PARDON, EXECUTIVE AGREEMENTS,


FOREIGN AFFAIRS
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1278

January 21, 1949

LORETO BARRIOQUINTO and NORBERTO JIMENEZ, petitioners,


vs.
ENRIQUE A. FERNANDEZ, ANTONIO BELMONTE and FELICISIMO OCAMPO, as
Commissioners of the Fourteenth Guerrilla Amnesty Commission, respondents.

Roseller T. Lim for petitioners.


Antonio Belmonte for respondents.
FERIA, J.:
This is a special action of mandamus instituted by the petitioners against the respondents who
composed the 14th Guerrilla Amnesty Commission, to compel the latter to act and decide whether or
not the petitioners are entitled to the benefits of amnesty.
Petitioners Norberto Jimenez and Loreto Barrioquinto were charged with the crime of murder. As the
latter had not yet been arrested the case proceeded against the former, and after trial Court of First
Instance of Zamboanga sentenced Jimenez to life imprisonment. Before the period for perfecting an
appeal had expired, the defendant Jimenez became aware of the Proclamation No. 8, dated
September 7, 1946, which grants amnesty in favor of all persons who may be charged with an act
penalized under the Revised Penal Code in furtherance of the resistance to the enemy or against
persons aiding in the war efforts of the enemy, and committed during the period from December 8,
1941, to the date when particular area of the Philippines where the offense was actually committed
was liberated from enemy control and occupation, and said Jimenez decided to submit his case to
the Guerrilla Amnesty Commission presided by the respondents herein, and the other petitioner
Loreto Barrioquinto, who had then been already apprehended, did the same.
After a preliminary hearing had started, the Amnesty Commission, prescribed by the respondents,
issued on January 9, 1947, an order returning the cases of the petitioners to the Court of First
Instance of Zamboanga, without deciding whether or not they are entitled to the benefits of he said
Amnesty Proclamation, on the ground that inasmuch as neither Barrioquinto nor Jimenez have
admitted having committed the offense, because Barrioquinto alleged that it was Hipolito Tolentino
who shot and killed the victim, they cannot invoke the benefits of amnesty.
The Amnesty Proclamation of September 7, 1946, issued by the President with the concurrence of
Congress of the Philippines, reads in part as follows:
WHEREAS, since the inception of the war until the liberation of the different areas
comprising the territory of the Philippines, volunteer armed forces of Filipinos and for of other
nationalities operated as guerrillas and other patriotic individuals and groups pursued
activities in opposition to the forces and agents of the Japanese Empire in the invasion and
occupation of the Philippines;
WHEREAS, members of such forces, in their determined efforts to resist the enemy, and to
bring about his ultimate defeat, committed acts penalized under the Revised Penal Code;
WHEREAS, charges have been presented in the courts against many members of these
resistance forces, for such acts;
WHEREAS, the fact that such acts were committed in furtherance of the resistance to the
enemy is not a valid defense under the laws of the Philippines;
WHEREAS, the persons so accused should not be regarded as criminals but rather as
patriots and heroes who have rendered invaluable service to the nation; and
WHEREAS, it is desirable that without the least possible delay, these persons be freed form
the indignity and the jeopardy to which they are now being subjected;

NOW, THEREFORE, I Manuel Roxas, President of the Philippines in accordance with the
provisions of Article VII, section 10, paragraph 6 of the Constitution, do hereby declare and
proclaim an amnesty inn favor of al persons who committed any act penalized under the
Revised Penal Code in furtherance of the resistance to the enemy or against persons aiding
in the war effort of the enemy, and committed during the period from December 8, 1941 to
the date when each particular area of the Philippines was actually liberated from the enemy
control and occupation. This amnesty shall not apply to crimes against chastity or to acts
committed from purely personal motives.
It is further proclaimed and declared that in order to determine who among those against
whom charges have been filed before the courts of the Philippines or against whom charges
may be filed in the future, come within the terms of this amnesty, Guerrilla Amnesty
Commissions, simultaneously to be established , shall examine the facts and circumstance
surrounding each case and, if necessary, conduct summary hearings of witnesses both for
the complainant and the accused. These Commissions shall decided each case and, upon
finding that it falls within the terms of this proclamation, the Commissions shall so declare
and this amnesty shall immediately be effective as to the accused, who shall forthwith be
released or discharged.
The theory of the respondents, supported by the dissenting opinion, is predicated on a wrong
conception of the nature or character of an amnesty. Amnesty must be distinguished from pardon.
Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and
proved by the person pardoned, because the courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the concurrence of Congress, and it 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 persons 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 abolished or forgives the punishment, and for that reason it does ""nor work the
restoration of the rights to hold public office, or the right of suffrage, 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" article 36, 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. (section 10[6], Article VII, Philippine Constitution;
State vs. Blalock, 62 N.C., 242, 247; In re Briggs, 135 N.C., 118; 47 S.E. 402., 403; Ex parte Law, 35
GA., 285, 296; State ex rel AnheuserBusch Brewing Ass'n. vs. Eby, 170 Mo., 497; 71 S.W 52, 61;
Burdick vs United States, N.Y., 35 S. Ct., 267; 271; 236 U.S., 79; 59 Law. ed., 476.)
In view of the foregoing, we are of the opinion and so hold that, in order to entitle a person to the
benefits of the Amnesty Proclamation of September 7, 1946, it is not necessary that he should, as a
condition precedent or sine qua non, admit having committed the criminal act or offense with which
he is charged and allege the amnesty as a defense; it is sufficient that the evidence either of the
complainant or the accused, shows that the offense committed comes within the terms of said
Amnesty Proclamation. Hence, it is not correct to say that "invocation of the benefits of amnesty is in
the nature of a plea of confession and avoidance." Although the accused does not confess the
imputation against him, he may be declared by the courts or the Amnesty Commissions entitled to
the benefits. For, whether or not he admits or confesses having committed the offense with which he
is charged, the Commissions should, if necessary or requested by the interested party, conduct
summary hearing of the witnesses both for the complainants and the accused, on whether he has
committed the offense in furtherance of the resistance to the enemy, or against persons aiding in the

war efforts of the enemy, and decide whether he is entitled to the benefits of amnesty and to be
"regarded as a patriot or hero who have rendered invaluable services to the nation,," or not, in
accordance with the terms of the Amnesty Proclamation. since the Amnesty Proclamation is a public
act, the courts as well as the Amnesty Commissions created thereby should take notice of the terms
of said Proclamation and apply the benefits granted therein to cases coming within their province or
jurisdiction, whether pleaded or claimed by the person charged with such offenses or not, if the
evidence presented show that the accused is entitled to said benefits.
The right to the benefits of amnesty, once established by the evidence presented either by the
complainant or prosecution, or by the defense, can not be waived, because it is of public interest that
a person who is regarded by the Amnesty Proclamation which has the force of a law, not only as
innocent, for he stands in the eyes of the law as if he had never committed any punishable offense
because of the amnesty, but as a patriot or hero, can not be punishment as a criminal. Just as the
courts of justice can not convict a person who, according to the evidence, has committed an act not
punishable by law, although he confesses being guilty thereof, so also and a fortiori they can not
convict a person considered by law not a criminal, but as a patriot and hero, for having rendered
invaluable services to the nation inn committing such an act.
While it is true that the evidence must show that the offense charged was against chastity and was
committed in furtherance of the resistance against the enemy, for otherwise, it is to be naturally
presumed that is has been committed for purely personal motive, it is nonetheless true that though
the motive as a mental impulse is state of mind or subjective, it need not be testified to be the
defendant himself at his arraignment or hearing of the case. Generally the motive for the commission
of an offense is established by the testimony of witnesses on the acts or statements of the accused
before or immediately after the commission of the offense, deeds or words hat may express it or
from which his motive or reason for committing it may be inferred. The statement of testimony of a
defendant at the time of arraignment or the hearing of the case about said motive, can not generally
be considered and relied on, specially if there is evidence to the contrary, as the true expression of
the reason o motive he had at the time of committing the offense. Because such statements or
testimony may be an afterthought or colored by the interest he may have to suit his defense or the
purpose for which he intends to achieve with such declaration. Hence it does not stand to reason
and logic to say, as the dissenting opinion avers, that unless the defendant admits at the
investigation or hearing having committed the offense with which he is charged, and states that he
did it in furtherance of the resistance to the enemy, and not for purely personal motive, it is
impossible for the court of Commission to verify the motive for the commission of the offense,
because only the accused could explain of the offense, because only the accused could explain his
belief and intention or the motive of committing the offense.
There is no necessity for an accused to admit his responsibility for the commission of a criminal act
before a court of 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 contrary, 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 committed 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 a ding in the war efforts of the enemy, and not for
purely political motives.
According to Administrative Order No. 11 of October 2, 1946, creating the Amnesty Commissions,
issued by the President of the Philippines, cases pending in the Courts of First Instance of the

province in which the accused claims the benefits of Amnesty Proclamation, and cases already
decided by said courts but not yet elevated on appeal to the appellate courts, shall be passed upon
and decided by the respective Amnesty Commission, and cases pending appeal shall be passed
upon by the Seventh Amnesty Commission. Under the theory of the respondents and the writer oft
he dissenting opinion, the Commissions should refuse to comply with the directive of said
Administrative Order, because is almost all cases pending in the Court of First Instance, and all
those pending appeal form the sentence of said courts, the defendants must not have pleaded guilty
or admitted having committed the offense charged for otherwise, they would not or could not have
appealed from the judgment of the Courts of First Instance. To hold that a Amnesty Commission
should not proceed to the investigation and act and decide whether the offense with which an
accused was charged comes within the Amnesty Proclamation if he does not admit or confess
having committed it would be to defeat the purpose for which the Amnesty Proclamation was issued
and the Amnesty Commission were established. If the courts have to proceed to the trail or hearing
of a case and decide whether the offense committed by the defendant comes within the terms of the
Amnesty Proclamation although the defendant has plead not guilty, there is no reason why the
Amnesty Commissions can not do so. Where a defendant to admit or confess having committed the
offense or being responsible therefor before he can invoke the benefit of amnesty, as there is no law
which makes such admission or confession not admissible as evidence against him in the courts of
justices in case the Amnesty Commission finds that the offense does not come within the terms of
the Amnesty Proclamation, nobody or few would take the risk of submitting their case to said
Commission.
Besides, in the present case, the allegation of Loreto Barrioquinto that the offended party or victim
was shot and killed by Agapito Hipolito , does not necessarily bar the respondents from finding, after
the summary hearing of the witnesses for the complaints and the accused, directed in the said
Amnesty Proclamation and Administrative Order No. 11, that the petitioners are responsible for the
killing of the victim, either as principals by cooperation, inducement or conspiration, or as
accessories before as well as after the fact, but that they are entitled to the benefits of amnesty,
because they were members of the same group of guerrilleros who killed the victim in furtherance of
the resistance to the enemy or against persons aiding in the war efforts of the enemy.
Wherefore, the respondents are hereby ordered to immediately proceed to hear and decide the
application for amnesty of petitioners Barrioquinto and Jimenez, unless amnesty of petitioners
Barrioquinto and Jimenez, unless the courts have in the meantime already decided, expressly and
finally, the question whether or not they are entitled to the benefits of the Amnesty Proclamation No.
8 of September 7, 1946. So ordered.
Moran, C. J., Paras, Bengzon, and Briones, JJ., concur.

Separate Opinions
PERFECTO, J., concurring:
An information for the crime of murder was filed against petitioners with the Court of First Instance of
Zamboanga. Because Barrioquinto was then at large, the information was dismissed and a separate
criminal case was instituted against him. Jimenez was tried with other accused and sentenced to life
imprisonment. Within the time for appeal, Jimenez became aware of Proclamation No. 8, date
September 7, 1946, granting amnesty to all persons who have committed offenses in furtherance of

the resistance against the Japanese, and decided to submit his case to the 14th Guerrilla Amnesty
Commission. Barrioquinto, having been apprehended, did the same.
After the preliminary hearing had started, the Commission issued on January 9, 1947, an order for
the return of the cases of petitioners to the Court of First Instance of Zamboanga, without deciding
whether or not they are entitled to amnesty, because Barrioquinto sated in his testimony that it was
Hipolito Tolentino who fired at and killed the offended party. The Commission issued the order upon
the thesis that, for any person to invoke the benefits of the Amnesty Proclamation, it is required that
he should first admit having committed the offensive act for which he is prosecuted.
The next of the Amnesty Proclamation fails to support the thesis. To entitle a person to have his case
heard and decided by a Guerrilla Amnesty Commission only the following elements are essential:
First, that he is charged or may be charged with ab offense penalized under the Revised Penal
Code, except those against chastity or for purely personal motives; second, that he committed the
offense in furtherance of the resistance to the enemy; and third, that it was committed during the
period from December 8, 1941, to the date when the area where the offense was committed was
actually liberated from enemy control and occupation.
If these three elements are present in a case brought before a Guerrillas Amnesty Commission, the
latter cannot refuse to hear and decide it under the proclamation. There is nothing in the
proclamation to even hint that the applicant for amnesty must first admit having executed the acts
constituting the offense with which he is charged or be charged.
Upon the facts in this case, petitioners are entitled to have their applications for amnesty heard and
decided by respondent 14th Guerrilla Amnesty Commission.
With the revocation of its order of January 9, 1947, respondent 14th Guerrilla Amnesty Commission
is ordered to immediately proceed to hear and decide the applications for amnesty of petitioners
Barrioquinto and Jimenez.

TUASON, J., dissenting:


I am unable to agree with the decision of the Court and shall briefly state my reasons.
The decision proceeds on the assumption that the Guerrilla Amnesty Commission refused to hear
and decide the application for amnesty of the present petitioners. I think this is a mistake. There are
examinations of records, hearing and decisions.
The pleadings and annexes show that hearing was held on the 9th of January, 19947 in which the
two petitioners and their counsel were present, and one of them, Barrioquinto, testified and that it
was after that hearing, on the same date, that the Commission denied their petition in a written order
and directed the clerk to return the "expedientes" to the Court of First Instance of Zamboanga for its
final action.
It is apparent from this order that the Commission acted in the manner contemplated by
Proclamation No. 8 of the President. The return of the papers to the court merely follow the
procedure provided in the proclamation, which stipulates "that any case now pending on which may
be filed in the future a Guerrilla Amnesty Commission decides as not within the terms of the amnesty

shall proceed in accordance with the usual legal procedure in the courts without regard to this
proclamation."
The proclamation does not prescribe any specific mode of hearing. That the Commission shall
examine the facts and circumstance surrounding each case is all that is provided for. In its
discretion, the Commission may, if it deems necessary, hear the witnesses both for the complainant
and the accused. The hearing does not have to be formal; it may be summary, according tot he
proclamation. This privilege, discretionary with the Commission, was afforded the accused as far as
the nature of their defense permitted.
I get the inference from an examination of the orders of the Commission that the latter went over the
record of each defendant's criminal case. These records are, without doubt, the "expedientes" which
the Commission, ordered sent back to the court. The Commission, we are to presume, read the
exhaustive and well-reasoned decision of the court against Jimenez and the evidence for and
against him on which that decision is based. The fact that Jimenez and his witness had already
given his evidence at length, may well account for the failure or refusal of the Commission to hear
him and his witnesses further. Only Barrioquinto, whose case had not yet been tried in the Court of
First Instance because he had escaped, was heard by the Commission. The record of heat hearing
consists of 33 written pages.
As to the determination of the pretended right of the defendants to the benefits of amnesty, the two
orders of the Commission are decisions on the merits, definite and final as far as the Commission is
concerned. The fact that the defendants denied having committed the crime imputed to them was
cited by the Commission as ground for its decision to turn down their application. That circumstance
was not given as ground for refusal to act. Moreover, in the second order, a lengthy order dictated on
the motion for reconsideration by Jimenez, additional reasons are stated.
The Commission has thus amply performed the duties required of it by the Amnesty Proclamation in
both the matters of investigating and deciding. The commission heard one accused and examined
the evidence introduced and the decision rendered against the other. With the reasoning by which
the Commission reached its decision, or with the result of its decision, it is not within the province of
the court to concern itself.
The Amnesty Commissions are executive instrumentalities acting for and in behalf of the President.
They are not courts; they are not performing judicial function, and this Court has no appellate
jurisdiction over their actuations, orders or decisions.
Mandamus is ordinarily a remedy for official inaction. (Guanio vs. Fernandez, 55 Phil., 814.) The
Court can order the Commission to act but it can not tell the Commission how to act. How or for
whom a case should be decided is a matter of judgment which courts have no jurisdiction to control
or review. And so ifs the sufficiency or insufficiency of evidence. The write of mandamus will not
issue to control or review the exercise of discretion of a public officer where the law imposes upon a
public officer the right and the duty to exercise judgment. In reference to any matter in which he is
required to act, it is his judgment that is to be exercised and not that of the court. (Blanco vs. Board
of Medical Examiners, 46 Phil., 190.)
In the view I take of the case, it is unnecessary to discuss the court's premise that "there is nothing
in the proclamation to even hint that the applicant for amnesty must first admit having executed the
ac t s constituting the offense with which he is charged or may be charged." Nevertheless, I don't
think the Commission was wrong in its theory.

Amnesty presupposes the commission of a crime. When an accused says that he has not committed
a crime he cannot have any use for amnesty. It is also self-evening that where the Amnesty
Proclamation imposes certain conditions, as in this case, it is incumbent upon the accused to prove
the existence of those conditions. A petition for amnesty is inn the nature of plea of confession and
avoidance. The pleader has to confess the allegations against him before he is allowed to set out
such facts as, if true, would defeat the action. It is a rank inconsistency for one to justify an act, seek
forgiveness for an act of which, according to him, he is not responsible. It is impossible for a court or
commission to verify the presence of the essential conditions which should entitle the applicants to
exemption from punishment, when the accused and his witnesses say that he did not commit a
crime. In the nature of things, only the accused and his witnesses could prove that the victim
collaborated with the enemy; that the killing was perpetrated in furtherance of the resistance
movements; that no personal motive intervened in the commission of the murder, etc., etc. These, or
some of these, are matters of belief and intention which only the accused and his witnesses could
explain.
As a matter of procedure, certiorari or mandamus, whatever the present proceeding may be, does
not lie because there is another plain, speedy and adequate remedy at law. The decision of the
Commission has not closed the avenue for the petitioners to invoke the provisions of the Amnesty
Proclamation before the courts. I invite attention to the provision of the proclamation which I have
quoted. In the case of Jimenez, he could ask for a new trial, as he in effect would have the
Commission grant him; and in the case of Barrioquinto he could set up the proclamation in his plea
when his trial comes up.

PABLO, M., concurring:


Concurro con esta disidencia.

EN BANC

[G.R. No. 138570. October 10, 2000]

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT,


BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente),
BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.),
DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG
PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and
the
PUBLIC
INTEREST
LAW
CENTER, petitioners,
vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN
AFFAIRS
SECRETARY
DOMINGO
SIAZON,
DEFENSE
SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER
AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR

FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR


RODOLFO BIAZON, and SENATOR FRANCISCO TATAD,
respondents.

[G.R. No. 138572. October 10, 2000]

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA),


EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO,
AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B.
ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO,
as Secretary of National Defense, and HON. DOMINGO L.
SIAZON, JR., as Secretary of Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R.


OSMEA III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B.
ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO,
MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE
and RODOLFO G. BIAZON, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National


President, Jose Aguila Grapilon, petitioners, vs. JOSEPH
EJERCITO ESTRADA, in his capacity as President, Republic of
the Philippines, and HON. DOMINGO SIAZON, in his capacity as
Secretary of Foreign Affairs, respondents.

[G.R. No. 138698. October 10, 2000]

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZONAVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO,
FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG,
KILOSBAYAN,
MOVEMENT
OF
ATTORNEYS
FOR
BROTHERHOOD,
INTEGRITY AND
NATIONALISM,
INC.
(MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B.
FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G.
BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION
TO THE VISITING FORCES AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari
and prohibition are issues relating to, and borne by, an agreement forged in the turn of
the last century between the Republic of the Philippines and the United States of
America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of installations in the
Philippine territory by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United States entered into a
Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to
respond to any external armed attack on their territory, armed forces, public vessels,
and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991,
the Philippines and the United States negotiated for a possible extension of the military
bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed
RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have
extended the presence of US military bases in the Philippines. [2] With the expiration of
the RP-US Military Bases Agreement, the periodic military exercises conducted
between the two countries were held in abeyance. Notwithstanding, the defense and
security relationship between the Philippines and the United States of America
continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by
Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the
complementing strategic interests of the United States and the Philippines in the Asia-

Pacific region. Both sides discussed, among other things, the possible elements of the
Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led
to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations[3] that culminated in Manila on January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on
February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of
Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines, [5] the Instrument
of Ratification, the letter of the President[6] and the VFA, for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to
its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee
on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public hearings were held by the
two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443 recommending the concurrence of the Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its implementation. Debates then ensued.
[8]

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the
Senate, by a two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then
re-numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes
between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the
mechanism for regulating the circumstances and conditions under which US Armed
Forces and defense personnel may be present in the Philippines, and is quoted in its full
text, hereunder:

Article I
Definitions
As used in this Agreement, United States personnel means United States military
and civilian personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.

2. The term civilian personnel refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services Organization.

Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the Republic of
the Philippines and to abstain from any activity inconsistent with the spirit of this
agreement, and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to
ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in connection with
activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be
required in respect of United States military personnel who enter the
Philippines:
(a) personal identity card issued by the appropriate United States authority
showing full name, date of birth, rank or grade and service number (if
any), branch of service and photograph;
(b) individual or collective document issued by the appropriate United States
authority, authorizing the travel or visit and identifying the individual or
group as United States military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a
declaration of health, and when required by the cognizant representative of
the Government of the Philippines, shall conduct a quarantine inspection
and will certify that the aircraft or vessel is free from quarantinable
diseases. Any quarantine inspection of United States aircraft or United
States vessels or cargoes thereon shall be conducted by the United States
commanding officer in accordance with the international health

regulations as promulgated by the World Health Organization, and


mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but
shall present, upon demand, valid passports upon entry and departure of the
Philippines.
5. If the Government of the Philippines has requested the removal of any United
States personnel from its territory, the United States authorities shall be
responsible for receiving the person concerned within its own territory or
otherwise disposing of said person outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit
or license issued by the appropriate United States authority to United States
personnel for the operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered,
but shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with
respect to offenses committed within the Philippines and punishable under the
law of the Philippines.
(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the
military law of the United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security
of the Philippines, punishable under the laws of the Philippines, but not
under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security
of the United States, punishable under the laws of the United States, but not
under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense
relating to security means:

(1) treason;
(2) sabotage, espionage or violation of any law relating to national
defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules
shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the United
States in relation to.
(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official
duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular
case.
(d) Recognizing the responsibility of the United States military authorities to maintain
good order and discipline among their forces, Philippine authorities will, upon
request by the United States, waive their primary right to exercise jurisdiction
except in cases of particular importance to the Philippines. If the Government of
the Philippines determines that the case is of particular importance, it shall
communicate such determination to the United States authorities within twenty
(20) days after the Philippine authorities receive the United States request.
(e) When the United States military commander determines that an offense charged
by authorities of the Philippines against United states personnel arises out of an
act or omission done in the performance of official duty, the commander will issue
a certificate setting forth such determination. This certificate will be transmitted to
the appropriate authorities of the Philippines and will constitute sufficient proof of
performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In
those cases where the Government of the Philippines believes the circumstances
of the case require a review of the duty certificate, United States military
authorities and Philippine authorities shall consult immediately. Philippine
authorities at the highest levels may also present any information bearing on its
validity. United States military authorities shall take full account of the Philippine
position. Where appropriate, United States military authorities will take
disciplinary or other action against offenders in official duty cases, and notify the
Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall
notify the authorities of the other government as soon as possible.

(g) The authorities of the Philippines and the United States shall notify each other of
the disposition of all cases in which both the authorities of the Philippines and the
United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and
United States shall assist each other in the arrest of United States personnel in the
Philippines and in handling them over to authorities who are to exercise jurisdiction
in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the
arrest or detention of United States personnel who are subject of Philippine primary
or exclusive jurisdiction. Philippine authorities shall promptly notify United States
military authorities of the arrest or detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so
request, from the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense
with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding
custody, which the United States Government shall take into full account. In the
event Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one-year
period will not include the time necessary to appeal. Also, the one-year period will
not include any time during which scheduled trial procedures are delayed because
United States authorities, after timely notification by Philippine authorities to arrange
for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall
assist each other in the carrying out of all necessary investigation into offenses and
shall cooperate in providing for the attendance of witnesses and in the collection
and production of evidence, including seizure and, in proper cases, the delivery of
objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of
this Article and have been acquitted or have been convicted and are serving, or
have served their sentence, or have had their sentence remitted or suspended, or
have been pardoned, they may not be tried again for the same offense in the
Philippines. Nothing in this paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation of rules of discipline
arising from the act or omission which constituted an offense for which they were
tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established
by the law of the Philippines. At the minimum, United States personnel shall be
entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against
them and to have reasonable time to prepare a defense;

(c) To be confronted with witnesses against them and to cross examine such
witnesses;
(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the same
basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States
authorities, and to have such authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in accordance with Philippine laws,
excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel
shall be carried out in facilities agreed on by appropriate Philippine and United
States authorities. United States Personnel serving sentences in the Philippines
shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or
religious courts.

Article VI
Claims
1. Except for contractual arrangements, including United States foreign military sales
letters of offer and acceptance and leases of military equipment, both governments
waive any and all claims against each other for damage, loss or destruction to
property of each others armed forces or for death or injury to their military and
civilian personnel arising from activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and those to
which paragraph 1 applies, the United States Government, in accordance with
United States law regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage, loss, personal injury
or death, caused by acts or omissions of United States personnel, or otherwise
incident to the non-combat activities of the United States forces.

Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall be
free of all Philippine duties, taxes and other similar charges. Title to such property
shall remain with the United States, which may remove such property from the
Philippines at any time, free from export duties, taxes, and other similar charges.
The exemptions provided in this paragraph shall also extend to any duty, tax, or
other similar charges which would otherwise be assessed upon such property after

importation into, or acquisition within, the Philippines. Such property may be


removed from the Philippines, or disposed of therein, provided that disposition of
such property in the Philippines to persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to payment of such taxes, and duties
and prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for
the personal use of United States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar charges during the period of
their temporary stay in the Philippines. Transfers to persons or entities in the
Philippines not entitled to import privileges may only be made upon prior approval of
the appropriate Philippine authorities including payment by the recipient of
applicable duties and taxes imposed in accordance with the laws of the Philippines.
The exportation of such property and of property acquired in the Philippines by
United States personnel shall be free of all Philippine duties, taxes, and other similar
charges.

Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines in accordance with procedures
stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines. The movement of vessels shall
be in accordance with international custom and practice governing such vessels,
and such agreed implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces
shall not be subject to the payment of landing or port fees, navigation or over flight
charges, or tolls or other use charges, including light and harbor dues, while in the
Philippines. Aircraft operated by or for the United States armed forces shall observe
local air traffic control regulations while in the Philippines. Vessels owned or
operated by the United States solely on United States Government non-commercial
service shall not be subject to compulsory pilotage at Philippine ports.

Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have
notified each other in writing through the diplomatic channel that they have
completed their constitutional requirements for entry into force. This agreement
shall remain in force until the expiration of 180 days from the date on which
either party gives the other party notice in writing that it desires to terminate the
agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as
legislators, non-governmental organizations, citizens and taxpayers - assail the

constitutionality of the VFA and impute to herein respondents grave abuse of discretion
in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators


to question the constitutionality of the VFA?
II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25,
Article XVIII of the Constitution?
III

Does the VFA constitute an abdication of Philippine sovereignty?


a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV

Does the VFA violate:


a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US Armed Forces?

LOCUS STANDI

At the outset, respondents challenge petitioners standing to sue, on the ground that
the latter have not shown any interest in the case, and that petitioners failed to
substantiate that they have sustained, or will sustain direct injury as a result of the
operation of the VFA.[12] Petitioners, on the other hand, counter that the validity or
invalidity of the VFA is a matter of transcendental importance which justifies their
standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must
show not only that the law is invalid, but also that he has sustained or in is in immediate,
or imminent danger of sustaining some direct injury as a result of its enforcement, and

not merely that he suffers thereby in some indefinite way. He must show that he has
been, or is about to be, denied some right or privilege to which he is lawfully entitled, or
that he is about to be subjected to some burdens or penalties by reason of the statute
complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that
they have sustained, or are in danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have not established that the VFA
involves the exercise by Congress of its taxing or spending powers. [15] On this point, it
bears stressing that a taxpayers suit refers to a case where the act complained of
directly involves the illegal disbursement of public funds derived from taxation. [16] Thus,
inBugnay Const. & Development Corp. vs. Laron[17], we held:

x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be


benefited or injured by the judgment or entitled to the avails of the suit as a real party
in interest. Before he can invoke the power of judicial review, he must specifically
prove that he has sufficient interest in preventing the illegal expenditure of money
raised by taxation and that he will sustain a direct injury as a result of the enforcement
of the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation are involved in this case,
and in the absence of any allegation by petitioners that public funds are being misspent
or illegally expended, petitioners, as taxpayers, have no legal standing to assail the
legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present
suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,
[18]
sustained the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a condition imposed on
an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners
standing as members of Congress, in the absence of a clear showing of any direct
injury to their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the
delegation of the power of Congress to grant tax exemptions, are more apparent than
real. While it may be true that petitioners pointed to provisions of the VFA which
allegedly impair their legislative powers, petitioners failed however to sufficiently show
that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of
standing in these cases. As aptly observed by the Solicitor General, the IBP lacks the
legal capacity to bring this suit in the absence of a board resolution from its Board of
Governors authorizing its National President to commence the present action. [19]
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of its sound

discretion, brushes aside the procedural barrier and takes cognizance of the petitions,
as we have done in the early Emergency Powers Cases,[20] where we had occasion to
rule:

x x x ordinary citizens and taxpayers were allowed to question the constitutionality of


several executive orders issued by President Quirino although they were involving
only an indirect and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled
that transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must, technicalities of
procedure. We have since then applied the exception in many other
cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, 175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,
Daza vs. Singson,[22] and Basco vs. Phil. Amusement and Gaming Corporation,
[23]
where we emphatically held:
[21]

Considering however the importance to the public of the case at bar, and in keeping
with the Courts duty, under the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them,
the Court has brushed aside technicalities of procedure and has taken cognizance of
this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled
that in cases of transcendental importance, the Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to
the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on
the doctrine of separation of powers, which enjoins upon the departments of the
government a becoming respect for each others acts, [25] this Court nevertheless resolves
to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision
of the Constitution applies, with regard to the exercise by the senate of its constitutional
power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is
applicable considering that the VFA has for its subject the presence of foreign military
troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article
VII should apply inasmuch as the VFA is not a basing arrangement but an agreement

which involves merely the temporary visits of United States personnel engaged in joint
military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence
of the Senate on treaties or international agreements. Section 21, Article VII, which
herein respondents invoke, reads:

No treaty or international agreement shall be valid and effective unless concurred in


by at least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
Section 21, Article VII deals with treatise or international agreements in general, in
which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate
is required to make the subject treaty, or international agreement, valid and binding on
the part of the Philippines. This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or tax treatise or those economic in
nature. All treaties or international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular designation or appellation, requires
the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties
which involve the presence of foreign military bases, troops or facilities in the
Philippines.Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to consider the
agreement binding on the Philippines. Section 25, Article XVIII further requires that
foreign military bases, troops, or facilities may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast
in a national referendum held for that purpose if so required by Congress, and
recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting
each other, actually share some common ground. These constitutional provisions both
embody phrases in the negative and thus, are deemed prohibitory in mandate and
character. In particular, Section 21 opens with the clause No treaty x x x, and Section 25
contains the phrase shall not be allowed. Additionally, in both instances, the
concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under
Section 21, Article VII, and that the Senate extended its concurrence under the same
provision, is immaterial. For in either case, whether under Section 21, Article VII or
Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the
Senate is mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines. It provides for the guidelines to
govern such visits of military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal jurisdiction, movement of
vessel and aircraft, importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops, or facilities, should apply in the instant case. To
a certain extent and in a limited sense, however, the provisions of section 21, Article VII
will find applicability with regard to the issue and for the sole purpose of determining the
number of votes required to obtain the valid concurrence of the Senate, as will be
further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or
law prevails over a general one. Lex specialis derogat generali. Thus, where there is
in the same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only
such cases within its general language which are not within the provision of the
particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:

x x x that another basic principle of statutory construction mandates that general


legislation must give way to a special legislation on the same subject, and generally be
so interpreted as to embrace only cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute
prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where
two statutes are of equal theoretical application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to
mere transient agreements for the reason that there is no permanent placing of
structure for the establishment of a military base. On this score, the Constitution makes
no distinction between transient and permanent. Certainly, we find nothing in Section
25, Article XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the
Court should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is
not controlling since no foreign military bases, but merely foreign troops and facilities,
are involved in the VFA. Notably, a perusal of said constitutional provision reveals that
the proscription covers foreign military bases, troops, or facilities. Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases
being established. The clause does not refer to foreign military bases,
troops, or facilitiescollectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word or clearly signifies disassociation
and independence of one thing from the others included in the enumeration, [28] such
that, the provision contemplates three different situations - a military treaty the subject of
which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any
of the three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the
three-bases, troops or facilities-or could the treaty entered into cover only one or
two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything.[29] (Underscoring Supplied)

Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare such
as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in
the sea even for months and years without returning to their home country. These
military warships are actually used as substitutes for a land-home base not only of
military aircraft but also of military personnel and facilities. Besides, vessels are mobile
as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements
of Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (a) it must be under
atreaty; (b) the treaty must be duly concurred in by the Senate and, when so required

by congress, ratified by a majority of the votes cast by the people in a national


referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the
VFA. The concurrence handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25,
Article XVIII, the provision in the latter article requiring ratification by a majority of the
votes cast in a national referendum being unnecessary since Congress has not required
it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty
or international agreement, to be valid and effective, must be concurred in by at least
two-thirds of all the members of the Senate. On the other hand, Section 25, Article
XVIII simply provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the
members of the Senate is clearly required so that the concurrence contemplated by law
may be validly obtained and deemed present. While it is true that Section 25, Article
XVIII requires, among other things, that the treaty-the VFA, in the instant case-be duly
concurred in by the Senate, it is very true however that said provision must be related
and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed,
Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be
construed in relation to the provisions of Section 21, Article VII. In a more particular
language, the concurrence of the Senate contemplated under Section 25, Article XVIII
means that at least two-thirds of all the members of the Senate favorably vote to concur
with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed
of twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or
not less than sixteen (16) members, favorably acting on the proposal is an
unquestionable compliance with the requisite number of votes mentioned in Section 21
of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at
the time the voting was made,[31] will not alter in any significant way the circumstance
that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members
(23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at
least 16 favorable votes, suffice so as to render compliance with the strict constitutional
mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII
are present, we shall now pass upon and delve on the requirement that the VFA should
be recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25,
Article XVIII, means that the VFA should have the advice and consent of the United

States Senate pursuant to its own constitutional process, and that it should not be
considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador
Hubbard stating that the VFA is binding on the United States Government is conclusive,
on the point that the VFA is recognized as a treaty by the United States of
America. According to respondents, the VFA, to be binding, must only be accepted as a
treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that
the other contracting party accepts or acknowledges the agreement as a treaty.[32] To
require the other contracting state, the United States of America in this case, to
submit the VFA to the United States Senate for concurrence pursuant to its Constitution,
[33]
is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be
given their ordinary meaning except where technical terms are employed, in which case
the significance thus attached to them prevails. Its language should be understood in
the sense they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as
binding as a treaty.[35] To be sure, as long as the VFA possesses the elements of an
agreement under international law, the said agreement is to be taken equally as a
treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation. [36] There are many other terms used
for a treaty or international agreement, some of which are: act, protocol,
agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes,
pact, statute, charter andmodus vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international agreements included under the
general term treaty have little or no legal significance. Certain terms are useful, but they
furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the use of
those terms, or to the meanings which may be given to them in the internal law of the
State.
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 remained within their powers. [38] International law continues to make
no distinction between treaties and executive agreements: they are equally binding
obligations upon nations.[39]

In our jurisdiction, we have recognized the binding effect of executive agreements


even without the concurrence of the Senate or Congress. In Commissioner of
Customs vs. Eastern Sea Trading,[40] we had occasion to pronounce:

x x x the right of the Executive to enter into binding agreements without the necessity
of subsequent congressional approval 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-nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and
the settlement of claims. The validity of these has never been seriously questioned by
our courts.
xxxxxxxxx

Furthermore, the United States Supreme Court has expressly recognized the validity
and constitutionality of executive agreements entered into without Senate
approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis
Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301
U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S.
188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review,
Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp.
1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp.
537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987
Constitution is enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, 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.[41]

The records reveal that the United States Government, through Ambassador
Thomas C. Hubbard, has stated that the United States government has fully committed
to living up to the terms of the VFA. [42] For as long as the united States of America
accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its
obligations under the treaty, there is indeed marked compliance with the mandate of the
Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our
nations consent to be bound by said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the


state or of the government, as the case may be, through which the formal acceptance of
the treaty is proclaimed.[43] A State may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such ratification, (b) it is otherwise
established that the negotiating States agreed that ratification should be required, (c)
the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full
powers of its representative, or was expressed during the negotiation. [44]
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification. [45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law,
to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,[46] declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by
generally accepted rules for the conduct of its international relations. While the
international obligation devolves upon the state and not upon any particular branch,
institution, or individual member of its government, the Philippines is nonetheless
responsible for violations committed by any branch or subdivision of its government or
any official thereof. As an integral part of the community of nations, we are responsible
to assure that our government, Constitution and laws will carry out our international
obligation.[47] Hence, we cannot readily plead the Constitution as a convenient excuse for
non-compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by
the International Law Commission in 1949 provides: Every State has the duty to carry
out in good faith its obligations arising from treaties and other sources of international
law, and it may not invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty in
force is binding upon the parties to it and must be performed by them in good faith. This
is known as the principle of pacta sunt servanda which preserves the sanctity of treaties
and have been one of the most fundamental principles of positive international law,
supported by the jurisprudence of international tribunals. [49]
NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a
power and performing a task conferred upon him by the Constitution-the power to enter
into and ratify treaties. Through the expediency of Rule 65 of the Rules of Court,
petitioners in these consolidated cases impute grave abuse of discretion on the part
of the chief Executive in ratifying the VFA, and referring the same to the Senate
pursuant to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the
power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive duty
enjoined or to act at all in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head
of State, is the sole organ and authority in the external affairs of the country. In many
ways, the President is the chief architect of the nations foreign policy; his dominance in
the field of foreign relations is (then) conceded. [51] Wielding vast powers an influence, his
conduct in the external affairs of the nation, as Jefferson describes, is executive
altogether."[52]
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence of at least
two-thirds vote of all the members of the Senate. In this light, the negotiation of the VFA
and the subsequent ratification of the agreement are exclusive acts which pertain solely
to the President, in the lawful exercise of his vast executive and diplomatic powers
granted him no less than by the fundamental law itself. Into the field of negotiation the
Senate cannot intrude, and Congress itself is powerless to invade it.[53] Consequently,
the acts or judgment calls of the President involving the VFA-specifically the acts of
ratification and entering into a treaty and those necessary or incidental to the exercise of
such principal acts - squarely fall within the sphere of his constitutional powers and thus,
may not be validly struck down, much less calibrated by this Court, in the absence of
clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in
submitting the same to the Senate for concurrence, acted within the confines and limits
of the powers vested in him by the Constitution. It is of no moment that the President, in
the exercise of his wide latitude of discretion and in the honest belief that the VFA falls
within the ambit of Section 21, Article VII of the Constitution, referred the VFA to the
Senate for concurrence under the aforementioned provision. Certainly, no abuse of
discretion, much less a grave, patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA and referring the same to the
Senate for the purpose of complying with the concurrence requirement embodied in the
fundamental law. In doing so, the President merely performed a constitutional task and
exercised a prerogative that chiefly pertains to the functions of his office. Even if he
erred in submitting the VFA to the Senate for concurrence under the provisions of
Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still,
the President may not be faulted or scarred, much less be adjudged guilty of committing
an abuse of discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has
broadened the scope of judicial inquiry into areas normally left to the political
departments to decide, such as those relating to national security, it has not altogether
done away with political questions such as those which arise in the field of foreign
relations.[54] The High Tribunals function, as sanctioned by Article VIII, Section 1, is
merely (to) check whether or not the governmental branch or agency has gone beyond
the constitutional limits of its jurisdiction, not that it erred or has a different view. In the
absence of a showing (of) grave abuse of discretion amounting to lack of jurisdiction,
there is no occasion for the Court to exercise its corrective powerIt has no power to look
into what it thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the
Senate alone. Thus, once the Senate[56] performs that power, or exercises its prerogative
within the boundaries prescribed by the Constitution, the concurrence cannot, in like
manner, be viewed to constitute an abuse of power, much less grave abuse
thereof.Corollarily, the Senate, in the exercise of its discretion and acting within the
limits of such power, may not be similarly faulted for having simply performed a task
conferred and sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character;
the Senate, as an independent body possessed of its own erudite mind, has the
prerogative to either accept or reject the proposed agreement, and whatever action it
takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than
the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in
keeping the principles of separation of powers and of checks and balances alive and vigilantly
ensures that these cherished rudiments remain true to their form in a democratic
government such as ours. The Constitution thus animates, through this treatyconcurring power of the Senate, a healthy system of checks and balances
indispensable toward our nations pursuit of political maturity and growth. True enough,
rudimentary is the principle that matters pertaining to the wisdom of a legislative act are
beyond the ambit and province of the courts to inquire.
[57]

In fine, absent any clear showing of grave abuse of discretion on the part of
respondents, this Court- as the final arbiter of legal controversies and staunch sentinel
of the rights of the people - is then without power to conduct an incursion and meddle
with such affairs purely executive and legislative in character and nature. For the
Constitution no less, maps out the distinct boundaries and limits the metes and bounds
within which each of the three political branches of government may exercise the
powers exclusively and essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, GonzagaReyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno, J., see dissenting opinion.

Mendoza, J., in the result.


Panganiban, J., no part due to close personal and former professional relations with
a petitioner, Sen. J.R. Salonga.

[1]

Article V. Any such armed attack and all measures taken as a result thereof shall be immediately
reported to the Security Council of the United Nations. Such measures shall be terminated when the
Security Council has taken the measure necessary to restore and maintain international peace and
security.
[2]

Joint Report of the Senate Committee on Foreign Relation and the Committee on National Defense and
Security on the Visiting Forces Agreement.
[3]

Joint Committee Report.

[4]

Petition, G.R. No. 138698, Annex B, Rollo, pp. 61-62.

INSTRUMENT OF RATIFICATION
TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:
KNOW YE, that whereas, the Agreement between the government of the Republic of the Philippines and
the Government of the United States of America Regarding the Treatment of the United States Armed
Forces Visiting the Philippines, hereinafter referred to as VFA, was signed in Manila on 10 February 1998;
WHEREAS, the VFA is essentially a framework to promote bilateral defense cooperation between the
Republic of the Philippines and the United States of America and to give substance to the 1951 RP-US
Mutual Defense Treaty (RP-US MDT). To fulfill the objectives of the RP-US MDT, it is necessary that
regular joint military exercises are conducted between the Republic of the Philippines and the United
States of America;
WHEREAS, the VFA seeks to provide a conducive setting for the successful conduct of combined military
exercises between the Philippines and the United States armed forces to ensure interoperability of the
RP-US MDT;
WHEREAS, in particular, the VFA provides the mechanism for regulating the circumstances and
conditions under which US armed forces and defense personnel may be present in the Philippines such
as the following inter alia:
(a) specific requirements to facilitate the admission of United States personnel and their departure from
the Philippines in connection with activities covered by the agreement;
(b) clear guidelines on the prosecution of offenses committed by any member of the United States armed
forces while in the Philippines;
(c) precise directive on the importation and exportation of United States Government equipment,
materials, supplies and other property imported into or acquired in the Philippines by or on behalf of the
United States armed forces in connection with activities covered by the Agreement; and
(d) explicit regulations on the entry of United States vessels, aircraft, and vehicles;
WHEREAS, Article IX of the Agreement provides that it shall enter into force on the date on which the
Parties have notified each other in writing, through diplomatic channels, that they have completed their
constitutional requirements for its entry into force. It shall remain in force until the expiration of 180 days
from the date on which either Party gives the other Party written notice to terminate the Agreement.
NOW, THEREFORE, be it known that I, JOSEPH EJERCITO ESTRADA, President of the Republic of the
Philippines, after having seen and considered the aforementioned Agreement between the Government of

the United States of America Regarding the Treatment of the United States Armed Forces Visiting the
Philippines, do hereby ratify and confirm the same and each and every Article and Clause thereof.
IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.
GIVEN under my hand at the City of Manila, this 5th day of October, in the year of Our Lord one thousand
nine hundred and ninety-eight.
[5]

Petition, G.R. No. 138587, Annex C, Rollo, p. 59.

The Honorable Senate President and


Member of the Senate
Senate of the Philippines
Pasay City
Gentlemen and Ladies of the Senate:
I have the honor to transmit herewith the Instrument of Ratification duly signed by H.E. President Joseph
Ejercito Estrada, his message to the Senate and a draft Senate Resolution of Concurrence in connection
with the ratification of the AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA REGARDING THE
TREATMENT OF THE UNITED STATES ARMED FORCES VISITING THE PHILIPPINES.
With best wishes.
Very truly yours,
RONALDO B. ZAMORA
Executive Secretary
[6]

Petition, G.R. No. 138698, Annex C.

[7]

Between January 26 and March 11, 1999, the two Committees jointly held six public hearings-three in
Manila and one each in General Santos, Angeles City and Cebu City.
[8]

Petition , G.R. No. 138570, Annex C, Rollo, pp. 88-95.

WHEREAS, the VFA is essentially a framework for promoting the common security interest of the two
countries; and for strengthening their bilateral defense partnership under the 1951 RP-US Mutual
Defense Treaty;
xxxxxxxxx
WHEREAS, the VFA does not give unrestricted access or unhampered movement to US Forces in the
Philippines; in fact, it recognizes the Philippine government as the sole authority to approve the conduct
of any visit or activity in the country by US Forces, hence the VFA is not a derogation of Philippine
sovereignty;
WHEREAS, the VFA is not a basing arrangement; neither does it pave way for the restoration of the
American bases and facilities in the Philippines, in contravention of the prohibition against foreign bases
and permanent stationing of foreign troops under Article XVIII, Section 25 of the 1987 Constitutionbecause the agreement envisions only temporary visits of US personnel engaged in joint military
exercises or other activities as may be approved by the Philippine Government;
WHEREAS, the VFA gives Philippine courts primary jurisdiction over offenses that may be committed by
US personnel within Philippine territory, with the exception of those incurred solely against the security or
property of the Us or solely against the person or property of US personnel, and those committed in the
performance of official duty;
xxxxxxxxx

WHEREAS, by virtue of Article II of the VFA, the United States commits to respect the laws of the
Republic of the Philippines, including the Constitution, which declares in Article II, Section 8 thereof, a
policy of freedom from nuclear weapons consistent with the national interest;
WHEREAS, the VFA shall serve as the legal mechanism to promote defense cooperation between two
countries-enhancing the preparedness of the Armed Forces of the Philippines against external threats;
and enabling the Philippines to bolster the stability of the Pacific area in a shared effort with its neighborstates;
WHEREAS, the VFA will enhance our political, economic and security partnership and cooperation with
the United States-which has helped promote the development of our country and improved the lives of
our people;
WHEREAS, in accordance with the powers and functions of Senate as mandated by the Constitution, this
Chamber, after holding several public hearings and deliberations, concurs in the Presidents ratification of
the VFA, for the following reasons:
(1) The Agreement will provide the legal mechanism to promote defense cooperation between the
Philippines and the U.S. and thus enhance the tactical, strategic, and technological capabilities of our
armed forces;
(2) The Agreement will govern the treatment of U.S., military and defense personnel within Philippine
territory, while they are engaged in activities covered by the Mutual Defense Treaty and conducted with
the prior approval of the Philippine government; and
(3) The Agreement will provide the regulatory mechanism for the circumstances and conditions under
which U.S. military forces may visit the Philippines; x x x
xxxxxxxxx
WHEREAS, in accordance with Article IX of the VFA, the Philippine government reserves the right to
terminate the agreement unilaterally once it no longer redounds to our national interest: Now, therefore,
be it
Resolved, that the Senate concur, as it hereby concurs, in the Ratification of the Agreement between the
Government of the Republic of the Philippines and the United States of America Regarding the Treatment
of United States Armed Forces visiting the Philippines. x x x
[9]

The following voted for concurrence: (1) Senate President Marcelo Fernan, (2) Senate
President Pro Tempore Blas Ople, (3) Senator Franklin Drilon, (4) Senator Rodolfo Biazon, (5) Senator
Francisco Tatad, (6) Senator Renato Cayetano, (7) Senator Teresa Aquino-Oreta, (8) Senator Robert
Barbers, (9) Senator Robert Jaworski, (10) Senator Ramon Magsaysay, Jr., (11) Senator John Osmea,
(12) Senator Juan Flavier, (13) Senator Mirriam Defensor-Santiago, (14) Senator Juan Ponce-Enrile, (15)
Senator Vicente Sotto III, (16) Senator Ramon Revilla, (17) Senator Anna Dominique Coseteng, and (18)
Senator Gregorio Honasan.
Only the following voted to reject the ratification of the VFA: (1) Senator Teofisto Guingona, Jr., (2)
Senator Raul Roco, (3) Senator Sergio Osmena III, (4) Senator Aquilino Pimentel, Jr., and (5) Senator
Loren Legarda-Leviste.
[10]

See Petition, G.R. No. 138570, Rollo, pp. 105.

[11]

Minute Resolution dated June 8, 1999.

[12]

See Consolidated Comment.

[13]

Reply to Consolidated Comment, G.R. No. 138698; G.R. No. 138587.

[14]

Valmonte vs. Philippine Charity Sweepstakes Office, (Res.) G.R. No. 78716, September 22, 1987,
cited in Telecommunications and Broadcast Attorneys of the Philippines, Inc. vs. COMELEC, 289 SCRA
337, 343 [1998]; Valley Forge College vs. Americans United, 454 US 464, 70 L. Ed. 2d 700 [1982];

Bugnay Const. And Dev. Corp. vs. Laron, 176 SCRA 240, 251-252 [1989]; Tatad vs. Garcia, Jr. 243 SCRA
436, 473 [1995].
[15]

See Article VI, Sections 24, 25 and 29 of the 1987 Constitution.

[16]

Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]; Maceda vs. Macaraig, 197 SCRA 771
[1991]; Lozada vs. COMELEC, 120 SCRA 337 [1983]; Dumlao vs. COMELEC, 95 SCRA 392 [1980];
Gonzales vs. Marcos, 65 SCRA 624 [1975].
[17]

176 SCRA 240, 251-252 [1989].

[18]

235 SCRA 506 [1994].

[19]

Consolidated Memorandum, p. 11.

[20]

Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay & Corn Planters Association vs. Feliciano, 121
Phil. 358 [1965]; Philippine Constitution Association vs. Gimenez, 122 Phil. 894 [1965].
[21]

21 SCRA 774 [1967].

[22]

180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs. Guingona, Jr., 232 SCRA 110 [1994].

[23]

197 SCRA 52, 60 [1991].

[24]

232 SCRA 110 [1994].

[25]

J. Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261 [1992].

[26]

Manila Railroad Co. vs. Collector of Customs, 52 Phil. 950.

[27]

157 SCRA 282 [1988] cited in Republic vs. Sandiganbayan, 173 SCRA 72, 85 [1989].

[28]

Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).

[29]

Records of the Constitutional Commission, September 18, 1986 Deliberation, p. 782.

[30]

1987 Constitution, Article VI, Section 2. - the Senate shall be composed of twenty-four Senators who
shall be elected at large by the qualified voters of the Philippines, as may be provided by law.
[31]

The 24th member (Gloria Macapagal-Arroyo) of the Senate whose term was to expire in 2001 was
elected Vice-President in the 1998 national elections.
[32]

Ballentines Legal Dictionary, 1995.

[33]

Article 2, Section 2, paragraph 2 of the United States Constitution, speaking of the United States
President provides: He shall have power, by and with the advice and consent of the Senate to make
treaties, provided two-thirds of the senators present concur.
[34]

J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31 SCRA 413 [1970].

[35]

Altman Co. vs. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago, International
Law, 1998 Ed. P. 497.
[36]

Vienna Convention, Article 2.

[37]

Gerhard von Glahn, Law among Nations, an Introduction to Public International Law, 4th Ed., p. 480.

[38]

Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans Association Inc. vs.
Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959].
[39]

Richard J. Erickson, The Making of Executive Agreements by the United States Department of
Defense: An agenda for Progress, 13 Boston U. Intl. L.J. 58 [1995], citing Restatement [third] of Foreign
Relations Law pt. III, introductory note [1987] and Paul Reuter, Introduction to the Law of Treaties 22
[Jose Mico & Peter Haggemacher trans., 1989] cited in Consolidated Memorandum, p. 32.
[40]

3 SCRA 351, 356-357 [1961].

[41]

4 Record of the Constitutional Commission 782 [Session of September 18, 1986].

[42]

Letter of Ambassador Hubbard to Senator Miriam Defensor-Santiago:

Dear Senator Santiago:


I am happy to respond to your letter of April 29, concerning the way the US Government views the
Philippine-US Visiting Forces Agreement in US legal terms. You raise an important question and I believe
this response will help in the Senate deliberations.
As a matter of both US and international law, an international agreement like the Visiting Forces
Agreement is legally binding on the US Government, In international legal terms, such an agreement is a
treaty.However, as a matter of US domestic law, an agreement like the VFA is an executive agreement,
because it does not require the advice and consent of the senate under Article II, section 2 of our
Constitution.
The Presidents power to conclude the VFA with the Philippines, and other status of forces agreements
with the other countries, derives from the Presidents responsibilities for the conduct of foreign
relations (Art. II, Sec. 1) and his constitutional powers as Commander in Chief of the Armed
Forces. Senate advice and consent is not needed, inter alia, because the VFA and similar agreements
neither change US domestic nor require congressional appropriation of funds. It is important to note that
only about five percent of the international agreement entered into by the US Governments require
Senate advice and consent. However, in terms of the US Governments obligation to adhere to the terms
of the VFA, there is no difference between a treaty concurred in by our Senate and an executive
agreement. Background information on these points can be found in the Restatement 3rd of the Foreign
Relations Law of the United States, Sec. 301, et seq. [1986].
I hope you find this answer helpful. As the Presidents representative to the Government of the
Philippines, I can assure you that the United States Government is fully committed to living up to the
terms of the VFA.
Sincerely yours,
THOMAS C. HUBBARD
Ambassador
[43]

Gerhard von Glahn, Law Among Nations, An Introduction to Public International Law, 4th Ed., p. 486.

[44]

Article 14 of the Vienna Convention, cited in Coquia and Defensor-Santiago, Intenational Law, 1998
Ed., pp. 506-507.
[45]

Cruz, Isagani, International Law, 1985 Ed., p. 175.

[46]

Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.
[47]

Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials,
2nd Ed American Casebook Series, p. 136.
[48]

Gerhard von Glah, supra, p. 487.

[49]

Harris, p. 634 cited in Coquia, International Law, supra, p. 512.

[50]

Cuison vs. CA, 289 SCRA 159 [1998]. See also Jardine vs. NLRC, G.R. No. 119268, Feb 23, 2000
citing Arroyo vs. De Venecia, 277 SCRA 268 [1997].
[51]

Cortes, The Philippine Presidency a study of Executive Power, 2nd Ed., p. 195.

[52]

Cruz, Phil. Political Law, 1995 Ed., p. 223.

[53]

United States vs. Curtis Wright Corp., 299 U.S. 304 (1934), per Justice Sutherland.

[54]

Arroyo vs. De Venecia, 277 SCRA 269 [1997].

[55]

Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 701 (1991); Llamas vs.
Orbos, 202 SCRA 849, 857 (1991); Lansang vs. Garcia, 42 SCRA at 480-481 [1971].
[56]

1987 Constitution, Article VI, Section 1. - The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum.
[57]

See Akehurst, Michael: Modern Introduction to International Law, (London: George Allen and Unwin)
5th ed., p. 45; United States vs. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

EN BANC
AKBAYAN
CITIZENS
ACTION
PARTY (AKBAYAN), PAMBANSANG G.R. No. 170516
KATIPUNAN NG MGA SAMAHAN SA
KANAYUNAN (PKSK), ALLIANCE Present:
PUNO, C.J.,
OF PROGRESSIVE LABOR (APL),
QUISUMBING,
VICENTE A. FABE, ANGELITO R.
YNARES-SANTIAGO,
MENDOZA,
MANUEL
P.
CARPIO,
QUIAMBAO, ROSE BEATRIX CRUZAUSTRIA-MARTINEZ,
ANGELES, CONG. LORENZO R.
CORONA,
TANADA III, CONG. MARIO JOYO
CARPIO MORALES,
AGUJA, CONG. LORETA ANN P.
AZCUNA,
ROSALES, CONG. ANA THERESIA
TINGA,
HONTIVEROS-BARAQUEL,
AND
CHICO-NAZARIO,
CONG.
EMMANUEL
JOEL
J.
VELASCO, JR.,
VILLANUEVA,
NACHURA,
Petitioners,
REYES,
LEONARDO-DE CASTRO, &
- versus
BRION, JJ.
THOMAS G. AQUINO, in his capacity
as Undersecretary of the Department of
Trade and Industry (DTI) and
Chairman and Chief Delegate of the
Philippine Coordinating Committee
(PCC) for the Japan-Philippines
Economic
Partnership
Agreement,

EDSEL T. CUSTODIO, in his capacity


as Undersecretary of the Department of Promulgated:
Foreign Affairs (DFA) and Co-Chair of
the PCC for the JPEPA, EDGARDO
ABON, in his capacity as Chairman of July 16, 2008
the Tariff Commission and lead
negotiator for Competition Policy and
Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her
capacity as Assistant Director-General
of the National Economic Development
Authority (NEDA) and lead negotiator
for Trade in Services and Cooperation
of the JPEPA, MALOU MONTERO, in
her capacity as Foreign Service Officer
I, Office of the Undersecretary for
International Economic Relations of the
DFA and lead negotiator for the General
and Final Provisions of the JPEPA,
ERLINDA ARCELLANA, in her
capacity as Director of the Board of
Investments and lead negotiator for
Trade in Goods (General Rules) of the
JPEPA, RAQUEL ECHAGUE, in her
capacity as lead negotiator for Rules of
Origin of the JPEPA, GALLANT
SORIANO, in his official capacity as
Deputy Commissioner of the Bureau of
Customs and lead negotiator for
Customs Procedures and Paperless
Trading of the JPEPA, MA. LUISA
GIGETTE IMPERIAL, in her capacity
as Director of the Bureau of Local
Employment of the Department of
Labor and Employment (DOLE) and
lead negotiator for Movement of
Natural Persons of the JPEPA,
PASCUAL DE GUZMAN, in his
capacity as Director of the Board of

Investments and lead negotiator for


Investment of the JPEPA, JESUS
MOTOOMULL, in his capacity as
Director for the Bureau of Product
Standards of the DTI and lead
negotiator for Mutual Recognition of
the JPEPA, LOUIE CALVARIO, in his
capacity as lead negotiator for
Intellectual Property of the JPEPA,
ELMER H. DORADO, in his capacity
as Officer-in-Charge of the Government
Procurement Policy Board Technical
Support Office, the government agency
that is leading the negotiations on
Government Procurement of the
JPEPA, RICARDO V. PARAS, in his
capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead
negotiator for Dispute Avoidance and
Settlement of the JPEPA, ADONIS
SULIT, in his capacity as lead
negotiator for the General and Final
Provisions of the JPEPA, EDUARDO R.
ERMITA, in his capacity as Executive
Secretary, and ALBERTO ROMULO,
in his capacity as Secretary of the DFA,*
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Petitioners non-government organizations, Congresspersons, citizens and taxpayers
seek via the present petition for mandamus and prohibition to obtain from
respondents the full text of the Japan-Philippines Economic Partnership Agreement
(JPEPA) including the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto.

Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed
on January 25, 2005 House Resolution No. 551 calling for an inquiry into the
bilateral trade agreements then being negotiated by the Philippine government,
particularly the JPEPA. The Resolution became the basis of an inquiry
subsequently conducted by the House Special Committee on Globalization (the
House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent
Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine
Coordinating Committee created under Executive Order No. 213 (CREATION OF
A PHILIPPINE COORDINATING COMMITTEE TO STUDY THE
FEASIBILITY OF THE JAPAN-PHILIPPINES ECONOMIC PARTNERSHIP
AGREEMENT)[1] to study and negotiate the proposed JPEPA, and to furnish the
Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed
the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by
letter of November 2, 2005, replied that the Congressman shall be provided with a
copy thereof once the negotiations are completed and as soon as a thorough legal
review of the proposed agreement has been conducted.
In
a
separate
move,
the
House
Committee,
through
Congressman Herminio G. Teves,
requested
Executive
Secretary
Eduardo Ermita to furnish it with all documents on the subject including the latest
draft of the proposed agreement, the requests and offers etc. [2] Acting on the
request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as
follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign]
A[ffairs] explains that the Committees request to be furnished all documents
on the JPEPA may be difficult to accomplish at this time, since the proposed
Agreement has been a work in progress for about three years. A copy of the
draft JPEPA will however be forwarded to the Committee as soon as the text
thereof is settled and complete. (Emphasis supplied)

Congressman Aguja also


requested
NEDA
DirectorGeneral Romulo Neri and Tariff Commission Chairman Edgardo Abon, by letter
of July 1, 2005, for copies of the latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff
Commission does not have a copy of the documents being requested, albeit he was
certain that Usec. Aquino would provide the Congressman with a copy once the
negotiation is completed. And by letter of July 18, 2005, NEDA Assistant DirectorGeneral Margarita R. Songco informed the Congressman that his request addressed
to Director-General Neri had been forwarded to Usec. Aquino who would be in the
best position to respond to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved
to issue a subpoena for the most recent draft of the JPEPA, but the same was not
pursued because by Committee Chairman Congressman Teves information, then
House Speaker Jose de Venecia had requested him to hold in abeyance the issuance
of the subpoena until the President gives her consent to the disclosure of the
documents.[3]
Amid speculations that the JPEPA might be signed by the Philippine government
within December 2005, the present petition was filed on December 9, 2005.[4] The
agreement was to be later signed on September 9, 2006 by President
Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi
in Helsinki, Finland, following which the President endorsed it to the Senate for its
concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the
JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into
by the Philippines with another country in the event the Senate grants its consent to
it, covers a broad range of topics which respondents enumerate as follows: trade in
goods, rules of origin, customs procedures, paperless trading, trade in services,
investment, intellectual property rights, government procurement, movement of
natural persons, cooperation, competition policy, mutual recognition, dispute
avoidance and settlement, improvement of the business environment, and general
and final provisions.[5]

While the final text of the JPEPA has now been made accessible to the public
since September 11, 2006,[6] respondents do not dispute that, at the time the petition
was filed up to the filing of petitioners Reply when the JPEPA was still being
negotiated the initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of
the petition, the Court finds it necessary to first resolve some material procedural
issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must
be instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party from the
enjoyment of a legal right.[7] Respondents deny that petitioners have such standing
to sue.[I]n the interest of a speedy and definitive resolution of the substantive
issues raised, however, respondents consider it sufficient to cite a portion of the
ruling inPimentel v. Office of Executive Secretary[8] which emphasizes the need for
a personal stake in the outcome of the controversy on questions of standing.
In a petition anchored upon the right of the people to information on matters of
public concern, which is a public right by its very nature, petitioners need not show
that they have any legal or special interest in the result, it being sufficient to show
that they are citizens and, therefore, part of the general public which possesses the
right.[9] As the present petition is anchored on the right to information and
petitioners are all suing in their capacity as citizens and groups of citizens
including petitioners-members of the House of Representatives who additionally
are suing in their capacity as such, the standing of petitioners to file the present suit
is grounded in jurisprudence.
Mootness
Considering, however, that [t]he principal relief petitioners are praying for is the
disclosure of the contents of the JPEPA prior to its finalization between the two
States parties,[10] public disclosure of the text of the JPEPA after its signing by the

President, during the pendency of the present petition, has been largely rendered
moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now
stands cannot yet be considered as final and binding between the two
States. Article 164 of the JPEPA itself provides that the agreement does not take
effect immediately upon the signing thereof. For it must still go through the
procedures required by the laws of each country for its entry into force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which
the Governments of the Parties exchange diplomatic notes informing each
other that their respective legal procedures necessary for entry into force of
this Agreement have been completed. It shall remain in force unless terminated
as provided for in Article 165.[11] (Emphasis supplied)

President Arroyos endorsement of the JPEPA to the Senate for concurrence is part
of the legal procedures which must be met prior to the agreements entry into force.
The text of the JPEPA having then been made accessible to the public, the petition
has become moot and academic to the extent that it seeks the disclosure of the full
text thereof.
The petition is not entirely moot, however, because petitioners seek to
obtain, not merely the text of the JPEPA, but also the Philippine and
Japanese offers in the course of the negotiations.[12]
A discussion of the substantive issues, insofar as they impinge on petitioners
demand for access to the Philippine and Japanese offers, is thus in order.

Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the
documents bearing on the JPEPA negotiations violates their right to information
on matters ofpublic concern[13] and contravenes other constitutional provisions on
transparency, such as that on the policy of full public disclosure of all transactions
involving public interest.[14] Second, they contend that non-disclosure of the same
documents undermines their right to effective and reasonable participation in all
levels of social, political, and economic decision-making.[15] Lastly, they proffer
that divulging the contents of the JPEPA only after the agreement has been
concluded will effectively make the Senate into a mere rubber stamp of the
Executive, in violation of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest
text of the JPEPA are, except for the last, the same as those cited for the disclosure
of the Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of
respondents claim of privilege shall be discussed. The last, being
purely speculatory given that the Senate is still deliberating on the JPEPA, shall
not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the
threshold requirement that it be a matter of public concern. Apropos is the teaching
ofLegaspi v. Civil Service Commission:
In determining whether or not a particular information is of public concern there
is no rigid test which can be applied. Public concern like public interest is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by case
basis whether the matter at issue is of interest or importance, as it relates to or
affects the public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is evident that
the Philippine and Japanese offers submitted during the negotiations towards its
execution are matters of public concern. This, respondents do not dispute. They
only claim that diplomatic negotiations are covered by the doctrine of executive
privilege, thus constituting an exception to the right to information and the policy
of full public disclosure.
Respondents claim of privilege
It is well-established in jurisprudence that neither the right to information nor the
policy of full public disclosure is absolute, there being matters which, albeit of
public concern or public interest, are recognized as privileged in nature. The types
of information which may be considered privileged have been elucidated
inAlmonte v. Vasquez,[17] Chavez v. PCGG,[18] Chavez v. Public Estates Authority,
[19]
and most recently in Senate v. Ermita[20] where the Court reaffirmed the validity
of the doctrine of executive privilege in this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to
justify it and the context in which it is made.[21] In the present case, the ground for
respondents claim of privilege is set forth in their Comment, viz:
x x x The categories of information that may be considered privileged includes
matters of diplomatic character and under negotiation and review. In this case, the
privileged character of the diplomatic negotiations has been categorically
invoked and clearly explained by respondents particularly respondent DTI Senior
Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to
negotiations and legal review by the parties fall under the exceptions to the right
of access to information on matters of public concern and policy of public
disclosure. They come within the coverage of executive privilege. At the
time when the Committee was requesting for copies of such documents, the
negotiations were ongoing as they are still now and the text of the proposed
JPEPA is still uncertain and subject to change. Considering the status and nature
of such documents then and now, these are evidently covered by executive
privilege consistent with existing legal provisions and settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of
the rolling texts which may undergo radical change or portions of which may be
totally abandoned.Furthermore, the negotiations of the representatives of the

Philippines as well as of Japan must be allowed to explore alternatives in the


course of the negotiations in the same manner as judicial deliberations and
working drafts of opinions are accorded strict confidentiality.[22] (Emphasis
and underscoring supplied)

The ground relied upon by respondents is thus not simply that the information
sought involves a diplomatic matter, but that it pertains to diplomatic
negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Court
inChavez v. PCGG held that information on inter-government exchanges prior to
the conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest.[23] Even earlier, the same privilege was
upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus[24]wherein
the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the
Presidents representatives on the state of the then on-going negotiations of the RPUS Military Bases Agreement.[25] The Court denied the petition, stressing
that secrecy of negotiations with foreign countries is not violative of the
constitutional provisions of freedom of speech or of the press nor of the freedom
of access to information. The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition
of decision which are inherent in executive action. Another essential
characteristic of diplomacy is its confidential nature. Although much has been
said about open and secret diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimsonhave clearly analyzed and justified the
practice. In the words of Mr. Stimson:
A complicated negotiation . . . cannot be carried through
without many, many private talks and discussion, man to man;
many tentative suggestions and proposals. Delegates from
other countries come and tell you in confidence of their
troubles at home and of their differences with other countries
and with other delegates; they tell you of what they would do

under certain circumstances and would not do under other


circumstances. . . If these reports . . .should become
public . . . who would ever trust American Delegations in
another conference? (United States Department of State, Press
Releases, June 7, 1930, pp. 282-284.).
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign
powers on nearly all subjects is concerned. This, it is claimed, is incompatible
with the substance of democracy. As expressed by one writer, It can be said that
there is no more rigid system of silence anywhere in the world. (E.J. Young,
Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in
starting his efforts for the conclusion of the World War declared that we must have
open covenants, openly arrived at.He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups
attempt to muscle in.An ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both sides
would quickly lead to widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully
published, there is ample opportunity for discussion before it is approved.
(The New American Government and Its Works, James T. Young, 4 th Edition, p.
194) (Emphasis and underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S.


v. Curtiss-Wright Export Corp.[26] that the President is the sole organ of the nation
in its negotiations with foreign countries, viz:
x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation the Senate cannot
intrude; and Congress itself is powerless to invade it. As Marshall said in his great
argument of March 7, 1800, in the House of Representatives, The President is
the sole organ of the nation in its external relations, and its sole
representative with foreign nations. Annals, 6th Cong., col. 613. . . (Emphasis
supplied; underscoring in the original)

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the
final text of the JPEPA may not be kept perpetually confidential since there should

be ample opportunity for discussion before [a treaty] is approved


the offers exchanged by the parties during the negotiations continue to be
privileged even after the JPEPA is published. It is reasonable to conclude that the
Japanese representatives submitted their offers with the understanding that historic
confidentiality[27]would govern the same. Disclosing these offers could impair the
ability of the Philippines to deal not only with Japan but with other foreign
governments in futurenegotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public
scrutiny would discourage future Philippine representatives from frankly
expressing their views during negotiations. While, on first impression, it appears
wise to deter Philippine representatives from entering into compromises, it bears
noting that treaty negotiations, or any negotiation for that matter, normally involve
a process of quid pro quo, and oftentimes negotiators have to be willing to grant
concessions in an area of lesser importance in order to obtain more favorable
terms in an area of greater national interest. Apropos are the following
observations of Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in
agreement that publicity leads to grandstanding, tends to freeze negotiating
positions, and inhibits the give-and-take essential to successful
negotiation. As Sissela Bok points out, if negotiators have more to gain from
being approved by their own sides than by making a reasoned agreement with
competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In
fact, the public reaction may leave them little option. It would be a brave, or
foolish, Arab leader who expressed publicly a willingness for peace with Israel
that did not involve the return of the entire West Bank, or Israeli leader who stated
publicly a willingness to remove Israel's existing settlements from Judea and
Samaria in return for peace.[28] (Emphasis supplied)

Indeed, by hampering the ability of our representatives to compromise, we


may be jeopardizing higher national goals for the sake of securing less critical
ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction,
the JPEPA negotiations constituting no exception. It bears emphasis, however, that
such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a
type of information as privileged does not mean that it will be considered

privileged in all instances. Only after a consideration of the context in which the
claim is made may it be determined if there is a public interest that calls for the
disclosure of the desired information, strong enough to overcome its traditionally
privileged status.
Whether petitioners have established the presence of such a public interest shall be
discussed later. For now, the Court shall first pass upon the arguments raised by
petitioners against the application of PMPF v. Manglapus to the present case.
Arguments proffered
v. Manglapus

by

petitioners against the

application

of PMPF

Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present
case, there being substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of
the treaty involved. They stress that PMPF v. Manglapus involved the Military
Bases Agreement which necessarily pertained to matters affecting national
security; whereas the present case involves an economic treaty that seeks to
regulate trade and commerce between the Philippines and Japan, matters which,
unlike those covered by the Military Bases Agreement, are not so vital to national
security to disallow their disclosure.
Petitioners argument betrays a faulty assumption that information, to be considered
privileged, must involve national security. The recognition in Senate
v. Ermita[29]that executive privilege has encompassed claims of varying kinds, such
that it may even be more accurate to speak of executive privileges, cautions against
such generalization.
While there certainly are privileges grounded on the necessity of safeguarding
national security such as those involving military secrets, not all are founded
thereon.One example is the informers privilege, or the privilege of the
Government not to disclose the identity of a person or persons who furnish
information of violations of law to officers charged with the enforcement of that
law.[30] The suspect involved need not be so notorious as to be a threat to national

security for this privilege to apply in any given instance. Otherwise, the privilege
would be inapplicable in all but the most high-profile cases, in which case not only
would this be contrary to long-standing practice. It would also be highly prejudicial
to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications,
which are presumed privileged without distinguishing between those which
involve matters of national security and those which do not, the rationale for the
privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. x x x[31] (Emphasis supplied)

In the same way that the privilege for judicial deliberations does not depend on the
nature of the case deliberated upon, so presidential communications are privileged
whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential
communications is not absolute, one significant qualification being that the
Executive cannot, any more than the other branches of government, invoke a
general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal
wrongdoing. [32] This qualification applies whether the privilege is being invoked
in the context of a judicial trial or a congressional investigation conducted in aid of
legislation.[33]
Closely related to the presidential communications privilege is the deliberative
process privilege recognized in the United States. As discussed by the U.S.
Supreme Court in NLRB v. Sears, Roebuck & Co,[34] deliberative process
covers documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated. Notably, the privileged status of such documents rests, not on the
need to protect national security but, on the obvious realization that officials will
not communicate candidly among themselves if each remark is a potential item of

discovery and front page news, the objective of the privilege being to enhance the
quality of agency decisions. [35]
The diplomatic negotiations privilege bears a close resemblance to the
deliberative process and presidential communications privilege. It may be readily
perceived that the rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential communications is similar, if
not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for
diplomatic negotiations is meant to encourage a frank exchange of exploratory
ideas between the negotiating parties by shielding such negotiations from public
view. Similar to the privilege for presidential communications, the diplomatic
negotiations privilege seeks, through the same means, to protect the independence
in decision-making of the President, particularly in its capacity as the sole organ of
the nation in its external relations, and its sole representative with foreign
nations. And, as with the deliberative process privilege, the privilege accorded to
diplomatic negotiations arises, not on account of the content of the information per
se, but because the information is part of a process of deliberation which, in pursuit
of the public interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright
& Jaworski v. Department of the Treasury[37] enlightens on the close relation
between diplomatic negotiations and deliberative process privileges. The plaintiffs
in that case sought access to notes taken by a member of the U.S. negotiating team
during the U.S.-French tax treaty negotiations. Among the points noted therein
were the issues to be discussed, positions which the French and U.S. teams took on
some points, the draft language agreed on, and articles which needed to be
amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true example
of a deliberative process. Much give-and-take must occur for the countries to
reach an accord. A description of the negotiations at any one point would not
provide an onlooker a summary of the discussions which could later be relied on
as law. It would not be working law as the points discussed and positions agreed
on would be subject to change at any date until the treaty was signed by the
President and ratified by the Senate.
The

policies

behind

the deliberative

process

privilege support

non-

disclosure. Much harm could accrue to the negotiations process if these notes
were revealed. Exposure of the pre-agreement positions of the French
negotiators might well offend foreign governments and would lead to less
candor by the U. S. in recording the events of the negotiations process. As
several months pass in between negotiations, this lack of record could hinder
readily the U. S. negotiating team. Further disclosure would reveal prematurely
adopted policies. If these policies should be changed, public confusion would
result easily.
Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the notes state
the tentative provisions and language agreed on. As drafts of regulations
typically are protected by the deliberative process privilege, Arthur Andersen
& Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982),
drafts of treaties should be accorded the same protection. (Emphasis and
underscoring supplied)

Clearly, the privilege accorded to diplomatic negotiations follows as a logical


consequence from the privileged character of the deliberative process.

The Court is not unaware that in Center for International Environmental Law
(CIEL), et al. v. Office of U.S. Trade Representative[38] where the plaintiffs sought
information relating to the just-completed negotiation of a United States-Chile
Free Trade Agreement the same district court, this time under Judge Friedman,
consciously refrained from applying the doctrine in Fulbright and ordered the
disclosure of the information being sought.

Since the factual milieu in CIEL seemed to call for the straight application of the
doctrine in Fulbright, a discussion of why the district court did not apply the same
would help illumine this Courts own reasons for deciding the present case along
the lines of Fulbright.

In both Fulbright and CIEL, the U.S. government cited a statutory basis for
withholding information, namely, Exemption 5 of the Freedom of Information Act
(FOIA).[39] In order to qualify for protection under Exemption 5, a document must

satisfy two conditions: (1) it must be either inter-agency or intra-agency in


nature, and (2) it must be both pre-decisional and part of the agency's
deliberative or decision-making process.[40]

Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context


between the two cases, based his decision on what he perceived to be a significant
distinction: he found the negotiators notes that were sought in Fulbright to be
clearly internal, whereas the documents being sought in CIEL were those
produced by or exchanged with an outside party, i.e. Chile. The documents subject
of Fulbright being clearly internal in character, the question of disclosure therein
turned not on the threshold requirement of Exemption 5 that the document be
inter-agency, but on whether the documents were part of the agency's predecisional deliberative process. On this basis, Judge Friedman found that Judge
Green's discussion [in Fulbright] of the harm that could result from disclosure
therefore is irrelevant, sincethe documents at issue [in CIEL] are not interagency, and the Court does not reach the question of deliberative
process. (Emphasis supplied)

In fine, Fulbright was not overturned. The court in CIEL merely found the same to
be irrelevant in light of its distinct factual setting. Whether this conclusion was
valid a question on which this Court would not pass the ruling in Fulbright that
[n]egotiations between two countries to draft a treaty represent a true example of a
deliberative process was left standing, since the CIEL court explicitly stated that it
did not reach the question of deliberative process.

Going back to the present case, the Court recognizes that the information
sought by petitioners includes documents produced and communicated by a party
external to the Philippine government, namely, the Japanese representatives in the
JPEPA negotiations, and to that extent this case is closer to the factual
circumstances of CIEL than those of Fulbright.

Nonetheless, for reasons which shall be discussed shortly, this Court echoes the
principle articulated in Fulbright that the public policy underlying the deliberative
process privilege requires that diplomatic negotiations should also be accorded
privileged status, even if the documents subject of the present case cannot be
described as purely internal in character.

It need not be stressed that in CIEL, the court ordered the disclosure of
information based on its finding that the first requirement of FOIA Exemption 5
that the documents be inter-agency was not met. In determining whether the
government may validly refuse disclosure of the exchanges between
the U.S. and Chile, it necessarily had to deal with this requirement, it being laid
down by a statute binding on them.

In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any
statutory requirement similar to FOIA Exemption 5 in particular. Hence,
Philippine courts, when assessing a claim of privilege for diplomatic negotiations,
are more free to focus directly on the issue of whether the privilege being
claimed is indeedsupported by public policy, without having to consider as
the CIEL court did if these negotiations fulfill a formal requirement of being interagency. Important though that requirement may be in the context of domestic
negotiations, it need not be accorded the same significance when dealing with
international negotiations.

There being a public policy supporting a privilege for diplomatic negotiations for
the reasons explained above, the Court sees no reason to modify, much less
abandon, the doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their attempt to


differentiate PMPF
v. Manglapus from the present case is the fact that the petitioners therein consisted
entirely of members of the mass media, while petitioners in the present case
include members of the House of Representatives who invoke their right to
information not just as citizens but as members of Congress.

Petitioners thus conclude that the present case involves the right of members of
Congress to demand information on negotiations of international trade agreements
from the Executive branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of
the mass media, it would be incorrect to claim that the doctrine laid down therein
has no bearing on a controversy such as the present, where the demand for
information has come from members of Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso
facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances. The probability of the claim succeeding
in the new context might differ, but to say that the privilege, as such, has no
validity at all in that context is another matter altogether.
The Courts statement in Senate v. Ermita that presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of
considerations [state secrets privilege, informers privilege, and a generic privilege
for internal deliberations], and may be asserted, with differing degrees of success,
in the context of either judicial or legislative investigations, [41] implies that a
privilege, once recognized, may be invoked under different procedural
settings. That this principle holds true particularly with respect to diplomatic
negotiations may be inferred from PMPF v. Manglapus itself, where the Court held
that it is the President alone who negotiates treaties, and not even the Senate or the
House of Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only
against citizens demands for information, but also in the context of legislative
investigations.

Hence, the recognition granted in PMPF v. Manglapus to the privileged character


of diplomatic negotiations cannot be considered irrelevant in resolving the present
case, the contextual differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF
v. Manglapus in this case, petitioners proffer that the socio-political and historical
contexts of the two cases are worlds apart. They claim that the constitutional
traditions and concepts prevailing at the time PMPF v. Manglapus came about,
particularly the school of thought that the requirements of foreign policy and the
ideals of transparency were incompatible with each other or the incompatibility
hypothesis, while valid when international relations were still governed by power,
politics and wars, are no longer so in this age of international cooperation.[42]
Without delving into petitioners assertions respecting the incompatibility
hypothesis, the Court notes that the ruling in PMPF v. Manglapus is grounded
more on the nature of treaty negotiations as such than on a particular socio-political
school of thought. If petitioners are suggesting that the nature of treaty negotiations
have so changed that [a]n ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both sides no
longer lead[s] to widespread propaganda to block the negotiations, or that parties in
treaty negotiations no longer expect their communications to be governed by
historic confidentiality, the burden is on them to substantiate the same. This
petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation process

Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a


reasonable amount of confidentiality so as not to jeopardize the diplomatic
process. They argue, however, that the same is privileged only at certain stages of
the negotiating process, after which such information must necessarily be revealed
to the public.[43] They add that the duty to disclose this information was vested in
the government when the negotiations moved from the formulation and
exploratory stage to the firming up of definite propositions or official
recommendations, citing Chavez v. PCGG[44] and Chavez v. PEA.[45]

The following statement in Chavez v. PEA, however, suffices to show that the
doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose
definite propositions of the government does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official
information on on-going negotiations before a final contract. The information,
however, must constitute definite propositions by the government and should
not cover recognized exceptions like privileged information, military and
diplomatic secrets and similar matters affecting national security and public
order. x x x[46] (Emphasis and underscoring supplied)

It follows from this ruling that even definite propositions of the government may
not be disclosed if they fall under recognized exceptions. The privilege for
diplomatic negotiations is clearly among the recognized exceptions, for the
footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an
authority.
Whether there is sufficient public interest to overcome the claim of privilege

It being established that diplomatic negotiations enjoy a presumptive privilege


against disclosure, even against the demands of members of Congress for
information, the Court shall now determine whether petitioners have shown the
existence of a public interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken
into account. One is the presumed public interest in favor of keeping the subject
information confidential, which is the reason for the privilege in the first place,
and the other is the public interest in favor of disclosure, the existence of which
must be shown by the party asking for information. [47]
The criteria to be employed in determining whether there is a sufficient public
interest in favor of disclosure may be gathered from cases such as U.S. v. Nixon,
[48]
Senate Select Committee on Presidential Campaign Activities v. Nixon,[49] and In
re Sealed Case.[50]

U.S. v. Nixon, which involved a claim of the presidential communications privilege


against the subpoena duces tecum of a district court in a criminal case,
emphasizedthe need to balance such claim of privilege against the constitutional
duty of courts to ensure a fair administration of criminal justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably
relevant in a criminal trial would cut deeply into the guarantee of due process
of law andgravely impair the basic function of the courts. A Presidents
acknowledged need for confidentiality in the communications of his office is
general in nature, whereas theconstitutional need for production of relevant
evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution may be totally
frustrated. The Presidents broad interest in confidentiality of communications will
not be vitiated by disclosure of a limited number of conversations preliminarily
shown to have some bearing on the pending criminal cases. (Emphasis, italics and
underscoring supplied)

Similarly, Senate Select Committee v. Nixon,[51] which involved a claim of


the presidential communications privilege against the subpoena duces tecum of a
Senate committee, spoke of the need to balance such claim with the duty of
Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to
ensure that the President and those upon whom he directly relies in the
performance of his duties could continue to work under a general assurance that
their deliberations would remain confidential. So long as the presumption that
the public interest favors confidentiality can be defeated only by a strong
showing of need by another institution of government- a showing that the
responsibilities of that institution cannot responsibly be fulfilled without
access to records of the President's deliberations- we believed in Nixon
v. Sirica, and continue to believe, that the effective functioning of the presidential
office will not be impaired. x x x
xxxx
The sufficiency of the Committee's showing of need has come to depend,
therefore, entirely on whether the subpoenaed materials are critical to the
performance of its legislative functions. x x x (Emphasis and underscoring
supplied)

In re Sealed Case[52] involved a claim of the deliberative process and presidential


communications privileges against a subpoena duces tecum of a grand jury. On the
claim of deliberative process privilege, the court stated:
The deliberative process privilege is a qualified privilege and can be
overcome by a sufficient showing of need. This need determination is to be
made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative
process privilege] is asserted the district court must undertake a fresh balancing of
the competing interests," taking into account factors such as "the relevance of
the evidence," "the availability of other evidence," "the seriousness of the
litigation," "the role of the government," and the "possibility of future
timidity by government employees. x x x (Emphasis, italics and underscoring
supplied)

Petitioners have failed to present the strong and sufficient showing of need referred
to in the immediately cited cases. The arguments they proffer to establish their
entitlement to the subject documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the
JPEPA negotiation process effectively results in the bargaining away of their
economic and property rights without their knowledge and participation, in
violation of the due process clause of the Constitution. They claim, moreover, that
it is essential for the people to have access to the initial offers exchanged during
the negotiations since only through such disclosure can their constitutional right to
effectively participate in decision-making be brought to life in the context of
international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the
JPEPA negotiations is a question of fact which this Court need not resolve. Suffice
it to state that respondents had presented documents purporting to show that public
consultations were conducted on the JPEPA. Parenthetically, petitioners consider
these alleged consultations as woefully selective and inadequate.[53]
AT ALL EVENTS, since it is not disputed that the offers exchanged by the
Philippine and Japanese representatives have not been disclosed to the public, the
Court shall pass upon the issue of whether access to the documents bearing on

them is, as petitioners claim, essential to their right to participate in decisionmaking.


The case for petitioners has, of course, been immensely weakened by the
disclosure of the full text of the JPEPA to the public since September 11, 2006,
even as it is still being deliberated upon by the Senate and, therefore, not yet
binding on the Philippines. Were the Senate to concur with the validity of the
JPEPA at this moment, there has already been, in the words of PMPF
v. Manglapus, ample opportunity for discussion before [the treaty] is approved.
The text of the JPEPA having been published, petitioners have failed to convince
this Court that they will not be able to meaningfully exercise their right to
participate in decision-making unless the initial offers are also published.
It is of public knowledge that various non-government sectors and private citizens
have already publicly expressed their views on the JPEPA, their comments not
being limited to general observations thereon but on its specific
provisions. Numerous articles and statements critical of the JPEPA have been
posted on the Internet.[54] Given these developments, there is no basis for
petitioners claim that access to the Philippine and Japanese offers is essential to the
exercise of their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor
their claim to have a right to the subject documents on the basis of Congress
inherent power to regulate commerce, be it domestic or international. They allege
that Congress cannot meaningfully exercise the power to regulate international
trade agreements such as the JPEPA without being given copies of the initial offers
exchanged during the negotiations thereof. In the same vein, they argue that the
President cannot exclude Congress from the JPEPA negotiations since whatever
power and authority the President has to negotiate international trade agreements is
derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of
the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.[55]
The subject of Article VI Section 28(2) of the Constitution is not the power
to negotiate treaties and international agreements, but the power to fix tariff rates,
import and export quotas, and other taxes. Thus it provides:

(2) The Congress may, by law, authorize the President to fix within specified
limits, and subject to such limitations and restrictions as it may impose, tariff
rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the
Government.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21


of Article VII the article on the Executive Department which states:
No treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate.

The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to


the President, being the sole organ of the nation in its external relations, was
echoed in BAYAN v. Executive Secretary[56] where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President,
as head of State, is the sole organ and authority in the external affairs of the
country. In many ways, the President is the chief architect of the nation's
foreign policy; his "dominance in the field of foreign relations is (then)
conceded." Wielding vast powers and influence, his conduct in the external
affairs of the nation, as Jefferson describes, is executive altogether.
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence
of at least two thirds vote of all the members of the Senate. In this light, the
negotiation of the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful exercise
of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude,
and Congress itself is powerless to invade it. x x x (Italics in the
original; emphasis and underscoring supplied)

The same doctrine was reiterated even more recently in Pimentel v. Executive
Secretary[57] where the Court ruled:

In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations. In the
realm of treaty-making, the President has the sole authority to negotiate with
other states.
Nonetheless, while the President has the sole authority to negotiate and enter
into treaties, the Constitution provides a limitation to his power by requiring
the concurrence of 2/3 of all the members of the Senate for the validity of the
treaty entered into by him. x x x (Emphasis and underscoring supplied)

While the power then to fix tariff rates and other taxes clearly belongs to Congress,
and is exercised by the President only by delegation of that body, it has long been
recognized that the power to enter into treaties is vested directly and exclusively in
the President, subject only to the concurrence of at least two-thirds of all the
Members of the Senate for the validity of the treaty. In this light, the authority of
the President to enter into trade agreements with foreign nations provided under
P.D. 1464[58] may be interpreted as an acknowledgment of a power already
inherent in its office. It may not be used as basis to hold the President or its
representatives accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is
unlimited but for the requirement of Senate concurrence, since the President must
stillensure that all treaties will substantively conform to all the relevant provisions
of the Constitution.
It follows from the above discussion that Congress, while possessing vast
legislative powers, may not interfere in the field of treaty negotiations. While
Article VII, Section 21 provides for Senate concurrence, such pertains only to the
validity of the treaty under consideration, not to the conduct of negotiations
attendant to its conclusion. Moreover, it is not even Congress as a whole that has
been given the authority to concur as a means of checking the treaty-making power
of the President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens,


petitioners-members of the House of Representatives fail to present a sufficient
showing of need that the information sought is critical to the performance of the
functions of Congress, functions that do not include treaty-negotiation.
Respondents alleged failure to timely claim executive privilege
On respondents invocation of executive privilege, petitioners find the same
defective, not having been done seasonably as it was raised only in their Comment
to the present petition and not during the House Committee hearings.
That respondents invoked the privilege for the first time only in their
Comment to the present petition does not mean that the claim of privilege should
not be credited. Petitioners position presupposes that an assertion of the privilege
should have been made during the House Committee investigations, failing which
respondents are deemed to have waived it.
When
the
House
Committee
and
petitionerCongressman Aguja requested respondents for copies of the documents subject of
this case, respondents replied that the negotiations were still on-going and that the
draft of the JPEPA would be released once the text thereof is settled and
complete. There was no intimation that the requested copies are confidential in
nature by reason of public policy. The response may not thus be deemed a claim of
privilege by the standards of Senate v. Ermita, which recognizes as claims of
privilege only those which are accompanied by precise and certain reasons for
preserving the confidentiality of the information being sought.
Respondents failure to claim the privilege during the House Committee hearings
may not, however, be construed as a waiver thereof by the Executive branch. As
the immediately preceding paragraph indicates, what respondents received from
the House Committee and petitioner-Congressman Aguja were mere requests for
information. And as priorly stated, the House Committee itself refrained from
pursuing its earlier resolution to issue a subpoena duces tecum on account of then
Speaker Jose de Venecias alleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance.

While it is a salutary and noble practice for Congress to refrain from issuing
subpoenas to executive officials out of respect for their office until resort to it
becomes necessary, the fact remains that such requests are not a compulsory
process. Being mere requests, they do not strictly call for an assertion of executive
privilege.
The privilege is an exemption to Congress power of inquiry.[59] So long as
Congress itself finds no cause to enforce such power, there is no strict necessity to
assert the privilege. In this light, respondents failure to invoke the privilege during
the House Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents
Comment to this petition fails to satisfy in full the requirement laid down in Senate
v. Ermita that the claim should be invoked by the President or through the
Executive Secretary by order of the President.[60] Respondents claim of privilege is
being sustained, however, its flaw notwithstanding, because of circumstances
peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of the
respondents herein, without him adding the phrase by order of the President, shall
be considered as partially complying with the requirement laid down in Senate
v. Ermita. The requirement that the phrase by order of the President should
accompany the Executive Secretarys claim of privilege is a new rule laid down for
the first time in Senate v. Ermita, which was not yet final and executory at the time
respondents filed their Comment to the petition. [61] A strict application of this
requirement would thus be unwarranted in this case.

Response to the Dissenting Opinion of the Chief Justice


We are aware that behind the dissent of the Chief Justice lies a genuine zeal
to protect our peoples right to information against any abuse of executive
privilege.It is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive
privilege, should be careful not to veer towards the opposite extreme, to the point
that it would strike down as invalid even a legitimate exercise thereof.

We respond only to the salient arguments of the Dissenting Opinion which


have not yet been sufficiently addressed above.
1. After its historical discussion on the allocation of power over international trade
agreements in the United States, the dissent concludes that it will be turning
somersaults with history to contend that the President is the sole organ for external
relations in that jurisdiction. With regard to this opinion, We make only the
following observations:
There is, at least, a core meaning of the phrase sole organ of the nation in its
external relations which is not being disputed, namely, that the power
to directly negotiate treaties and international agreements is vested by our
Constitution only in the Executive. Thus, the dissent states that Congress has the
power to regulate commerce with foreign nations but does not have the power to
negotiate international agreements directly.[62]
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by
asking for the subject JPEPA documents, are not seeking to directly participate in
the negotiations of the JPEPA, hence, they cannot be prevented from gaining
access to these documents.
On the other hand, We hold that this is one occasion where the following ruling
in Agan v. PIATCO[63] and in other cases both before and since should be applied:
This Court has long and consistently adhered to the legal maxim that those
that cannot be done directly cannot be done indirectly. To declare the PIATCO
contracts valid despite the clear statutory prohibition against a direct government
guarantee would not only make a mockery of what the BOT Law seeks to
prevent -- which is to expose the government to the risk of incurring a monetary
obligation resulting from a contract of loan between the project proponent and its
lenders and to which the Government is not a party to -- but would also render
the BOT Law useless for what it seeks to achieve - to make use of the resources
of the private sector in the financing, operation and maintenance of infrastructure
and development projects which are necessary for national growth and

development but which the government, unfortunately, could ill-afford to finance


at this point in time.[64]

Similarly, while herein petitioners-members of the House of Representatives may


not have been aiming to participate in the negotiations directly, opening the JPEPA
negotiations to their scrutiny even to the point of giving them access to the offers
exchanged between the Japanese and Philippine delegations would have made a
mockery of what the Constitution sought to prevent and rendered it useless for
what it sought to achieve when it vested the power of direct negotiation solely with
the President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the
treaty-making power of the President, which our Constitution similarly defines,
may be gathered from Hamiltons explanation of why the U.S. Constitution
excludes the House of Representatives from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the
multitudinous composition of that body, forbid us to expect in it those qualities
which are essential to the proper execution of such a trust. Accurate and
comprehensive knowledge of foreign politics; a steady and systematic adherence
to the same views; a nice and uniform sensibility to national character,
decision, secrecy and dispatch; are incompatible with a body so variable and so
numerous. The very complication of the business by introducing a necessity of the
concurrence of so many different bodies, would of itself afford a solid
objection. The greater frequency of the calls upon the house of representatives,
and the greater length of time which it would often be necessary to keep them
together when convened, to obtain their sanction in the progressive stages of a
treaty, would be source of so great inconvenience and expense, as alone ought to
condemn the project.[65]

These considerations a fortiori apply in this jurisdiction, since the Philippine


Constitution, unlike that of the U.S., does not even grant the Senate the power to
advisethe Executive in the making of treaties, but only vests in that body the power
to concur in the validity of the treaty after negotiations have been concluded.
[66]
Much less, therefore, should it be inferred that the House of Representatives has
this power.
Since allowing petitioner-members of the House of Representatives access to the
subject JPEPA documents would set a precedent for future negotiations, leading to

the contravention of the public interests articulated above which the Constitution
sought to protect, the subject documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the
diplomatic secrets privilege over the subject JPEPA documents now that
negotiations have been concluded, since their reasons for nondisclosure cited in the
June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply
only for as long as the negotiations were still pending;
In their Comment, respondents contend that the negotiations of the
representatives of the Philippines as well as of Japan must be allowed to explore
alternatives in the course of the negotiations in the same manner as judicial
deliberations and working drafts of opinions are accorded strict
confidentiality. That respondents liken the documents involved in the JPEPA
negotiations to judicial deliberations and working drafts of opinions evinces,
by itself, that they were claiming confidentiality not only until, but even after,
the conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision has
been promulgated by the courts. The same holds true with respect to working
drafts of opinions, which are comparable to intra-agency recommendations. Such
intra-agency recommendations are privileged even after the position under
consideration by the agency has developed into a definite proposition, hence, the
rule in this jurisdiction that agencies have the duty to disclose only definite
propositions, and not the inter-agency and intra-agency communications during the
stage when common assertions are still being formulated.[67]
3. The dissent claims that petitioner-members of the House of
Representatives have sufficiently shown their need for the same documents to
overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue
its earlier intention to subpoena the documents. This strongly undermines the
assertion that access to the same documents by the House Committee is critical to
the performance of its legislative functions. If the documents were indeed critical,
the House Committee should have, at the very least, issued

a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the
present petition as a legislative body, rather than leaving it to the discretion of
individual Congressmen whether to pursue an action or not. Such acts would have
served as strong indicia that Congress itself finds the subject information to be
critical to its legislative functions.
Further, given that respondents have claimed executive privilege, petitionermembers of the House of Representatives should have, at least, shown how its lack
of access to the Philippine and Japanese offers would hinder the intelligent crafting
of legislation. Mere assertion that the JPEPA covers a subject matter over
which Congress has the power to legislate would not suffice. As Senate Select
Committee v. Nixon[68] held, the showing required to overcome the presumption
favoring confidentiality turns, not only on the nature and appropriateness of the
function in the performance of which the material was sought, but also the degree
to which the material was necessary to its fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and
attachments was published, petitioner-members of the House of Representatives
have been free to use it for any legislative purpose they may see fit. Since such
publication, petitioners need, if any, specifically for the Philippine and Japanese
offers leading to the final version of the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA
documents, the dissent contends that the Executive has failed to show how
disclosing them after the conclusion of negotiations would impair the performance
of
its
functions. The
contention,
with
due
respect,
misplaces
the onus probandi.While, in keeping with the general presumption of transparency,
the burden is initially on the Executive to provide precise and certain reasons for
upholding its claim of privilege, once the Executive is able to show that the
documents being sought are covered by a recognized privilege, the burden shifts to
the party seeking information to overcome the privilege by a strong showing of
need.
When it was thus established that the JPEPA documents are covered by the
privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the
presumption arose that their disclosure would impair the performance of executive

functions. It was then incumbent on petitioner- requesting parties to show that they
have a strong need for the information sufficient to overcome the privilege. They
have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is
claiming the privilege by order of the President, the same may not be strictly
applied to the privilege claim subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to
the President alone, it was laying down a new rule for which there is no
counterpart even in the United States from which the concept of executive
privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v.
Department of Justice,[69]citing In re Sealed Case,[70] the issue of whether a
President must personally invoke the [presidential communications] privilege
remains an open question. U.S. v. Reynolds,[71] on the other hand, held that [t]here
must be a formal claim of privilege, lodged by the head of the department which
has control over the matter, after actual personal consideration by that officer.
The rule was thus laid down by this Court, not in adherence to any established
precedent, but with the aim of preventing the abuse of the privilege in light of its
highly exceptional nature. The Courts recognition that the Executive Secretary also
bears the power to invoke the privilege, provided he does so by order of the
President, is meant to avoid laying down too rigid a rule, the Court being aware
that it was laying down a new restriction on executive privilege. It is with the same
spirit that the Court should not be overly strict with applying the same rule in this
peculiar instance, where the claim of executive privilege occurred before the
judgment in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the
dissent implies that the Court therein erred in citing US v. Curtiss Wright[72] and the
book entitled The New American Government and Its Work [73] since these
authorities, so the dissent claims, may not be used to calibrate the importance of
the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the
executive and legislative branches of government, the factual setting thereof was

different from that of PMPF v. Manglapus which involved a collision between


governmental power over the conduct of foreign affairs and the citizens right to
information.
That the Court could freely cite Curtiss-Wright a case that upholds the
secrecy of diplomatic negotiations against congressional demands for information
in the course of laying down a ruling on the public right to information only serves
to underscore the principle mentioned earlier that the privileged character accorded
to diplomatic negotiations does not ipso facto lose all force and effect simply
because the same privilege is now being claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private
citizens and not an executive-legislative conflict, but so did Chavez v.
PEA[74] which held that the [publics] right to information . . . does not extend to
matters recognized as privileged information under the separation of powers. What
counts as privileged information in an executive-legislative conflict is thus also
recognized as such in cases involving the publics right to information.
Chavez v. PCGG[75] also involved the publics right to information, yet the
Court recognized as a valid limitation to that right the same privileged information
based on separation of powers closed-door Cabinet meetings, executive sessions of
either house of Congress, and the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether
in the context of an executive-legislative conflict or a citizens demand for
information, as closely intertwined, such that the principles applicable to one are
also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by
entirely different criteria in each context, this may give rise to the absurd
resultwhere Congress would be denied access to a particular information because
of a claim of executive privilege, but the general public would have access to the
same information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the clear
and present danger test for the assessment of claims of privilege

against citizensdemands for information. If executive information, when demanded


by a citizen, is privileged only when there is a clear and present danger of a
substantive evil that the State has a right to prevent, it would be very difficult for
the Executive to establish the validity of its claim in each instance. In contrast, if
the demand comes from Congress, the Executive merely has to show that the
information is covered by a recognized privilege in order to shift the burden on
Congress to present a strong showing of need. This would lead to a situation
where it would be more difficult for Congress to access executive
information than it would be for private citizens.
We maintain then that when the Executive has already shown that an information is
covered by executive privilege, the party demanding the information must present
a strong showing of need, whether that party is Congress or a private citizen.
The rule that the same showing of need test applies in both these contexts,
however, should not be construed as a denial of the importance of analyzing the
context in which an executive privilege controversy may happen to be
placed. Rather, it affirms it, for it means that the specific need being shown by the
party seeking information in every particular instance is highly significant in
determining whether to uphold a claim of privilege. This need is, precisely, part
of the context in light of which every claim of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied
to executive privilege controversies across different contexts, the Court in PMPF
v.Manglapus did not err when it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American
Government and Its Work could not have taken into account the expanded statutory
right to information in the FOIA assumes that the observations in that book in
support of the confidentiality of treaty negotiations would be different had it been
written after the FOIA. Such assumption is, with due respect, at best, speculative.
As to the claim in the dissent that [i]t is more doubtful if the same book be used to
calibrate the importance of the right of access to information in the Philippine
setting considering its elevation as a constitutional right, we submit that the
elevation of such right as a constitutional right did not set it free from the

legitimate restrictions of executive privilege which is itself constitutionally-based.


[76]
Hence, the comments in that book which were cited in PMPF
v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used need as a test to uphold
or allow inroads into rights guaranteed under the Constitution. With due respect,
we assert otherwise. The Court has done so before, albeit without using the term
need.
In executive privilege controversies, the requirement that parties present a
sufficient showing of need only means, in substance, that they should show a
public interestin favor of disclosure sufficient in degree to overcome the claim of
privilege.[77] Verily, the Court in such cases engages in a balancing of
interests. Such a balancing of interests is certainly not new in constitutional
adjudication involving fundamental rights. Secretary of Justice v. Lantion,[78] which
was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the clear and
present danger test to the present controversy, but the balancing test, there seems to
be no substantial dispute between the position laid down in this ponencia and that
reflected in the dissent as to what test to apply. It would appear that the only
disagreement is on the results of applying that test in this instance.
The dissent, nonetheless, maintains that it suffices that information is of public
concern for it to be covered by the right, regardless of the publics need for the
information, and that the same would hold true even if they simply want to know it
because it interests them. As has been stated earlier, however, there is no dispute
that the information subject of this case is a matter of public concern. The Court
has earlier concluded that it is a matter of public concern, not on the basis of any
specific need shown by petitioners, but from the very nature of the JPEPA as an
international trade agreement.
However, when the Executive has as in this case invoked the privilege, and it has
been established that the subject information is indeed covered by the privilege
being claimed, can a party overcome the same by merely asserting that the
information being demanded is a matter of public concern, without any further

showing required? Certainly not, for that would render the doctrine of executive
privilege of no force and effect whatsoever as a limitation on the right to
information, because then the sole test in such controversies would be whether an
information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by
disclosing the documents of the JPEPA negotiations, the Philippine government
runs the grave risk of betraying the trust reposed in it by the Japanese
representatives, indeed, by the Japanese government itself. How would the
Philippine government then explain itself when that happens? Surely, it cannot
bear to say that it just had to release the information because certain persons
simply wanted to know it because it interests them.
Thus, the Court holds that, in determining whether an information is covered
by the right to information, a specific showing of need for such information is not a
relevant consideration, but only whether the same is a matter of public
concern. When, however, the government has claimed executive privilege, and it
has established that the information is indeed covered by the same, then the party
demanding it, if it is to overcome the privilege, must show that that the information
is vital, not simply for the satisfaction of its curiosity, but for its ability to
effectively and reasonably participate in social, political, and economic decisionmaking.[79]
7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where
the people can exercise their right to participate in the discussion whether the
Senate should concur in its ratification or not. (Emphasis supplied) It adds that this
right will be diluted unless the people can have access to the subject JPEPA
documents. What, to the dissent, is a dilution of the right to participate in decisionmaking is, to Us, simply a recognition of the qualified nature of the publics right to
information. It is beyond dispute that the right to information is not absolute and
that the doctrine of executive privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decisionmaking would be diluted, We reiterate that our people have been exercising their
right to participate in the discussion on the issue of the JPEPA, and they have been
able to articulate their different opinions without need of access to the JPEPA
negotiation documents.

Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select
Committee case, and In re Sealed Case, are similarly applicable to the present
controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was
there addressing only the Presidents assertion of privilege in the context of a
criminal trial, not a civil litigation nor a congressional demand for
information. What this caveat means, however, is only that courts must be careful
not to hastily apply the ruling therein to other contexts. It does not, however,
absolutely mean that the principles applied in that case may never be applied in
such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of
executive privilege in contexts other than a criminal trial, as in the case of Nixon v.
Administrator of General Services[80] which involved former President Nixons
invocation of executive privilege to challenge the constitutionality of the
Presidential Recordings and Materials Preservation Act [81] and the abovementioned In re Sealed Case which involved a claim of privilege against
a subpoena duces tecumissued in a grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in
the other cases already mentioned, We are merely affirming what the Chief Justice
stated in his Dissenting Opinion in Neri v. Senate Committee on Accountability[82] a
case involving an executive-legislative conflict over executive privilege. That
dissenting opinion stated that, while Nixon was not concerned with the balance
between the Presidents generalized interest in confidentiality and congressional
demands for information, [n]onetheless the [U.S.] Court laid down principles
and procedures that can serve as torch lights to illumine us on the scope and
use of Presidential communication privilege in the case at bar.[83] While the
Court was divided in Neri, this opinion of the Chief Justice was not among the
points of disagreement, and We similarly hold now that the Nixon case is a useful
guide in the proper resolution of the present controversy, notwithstanding the
difference in context.

Verily, while the Court should guard against the abuse of executive privilege,
it should also give full recognition to the validity of the privilege whenever it is
claimed within the proper bounds of executive power, as in this
case. Otherwise, the Court would undermine its own credibility, for it would be
perceived as no longer aiming to strike a balance, but seeking merely to water
down executive privilege to the point of irrelevance.
Conclusion
To recapitulate, petitioners demand to be furnished with a copy of the full text of
the JPEPA has become moot and academic, it having been made accessible to the
public since September 11, 2006. As for their demand for copies of the Philippine
and Japanese offers submitted during the JPEPA negotiations, the same must be
denied, respondents claim of executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution
in PMPF v. Manglapus on September 13, 1988, been recognized as privileged in
this jurisdiction and the reasons proffered by petitioners against the application of
the ruling therein to the present case have not persuaded the Court. Moreover,
petitioners both private citizens and members of the House of Representatives have
failed to present a sufficient showing of need to overcome the claim of privilege in
this case.
That the privilege was asserted for the first time in respondents Comment to the
present petition, and not during the hearings of the House Special Committee on
Globalization, is of no moment, since it cannot be interpreted as a waiver of the
privilege on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as
departing from the ruling in Senate v. Ermita that executive privilege should be
invoked by the President or through the Executive Secretary by order of the
President.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES- SANTIAGO


Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice

RENATO C. CORONA
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

RUBEN T. REYES
Associate Justice

ANTONIO EDUARDO B. NACHURA


Associate Justice

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

ARTURO D. BRION
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice

In the case title as indicated in the petition, only the name of Usec. Thomas G. Aquino appears in the portion for
Respondents, to wit: HON. THOMAS G. AQUINO, in his capacity as Chairman and Chief Delegate of the
Philippine Coordinating Committee for the Japan-Philippines Economic Partnership Agreement, et
al. (Underscoring supplied) The other respondents are enumerated in the body of the petition. (Rollo, pp. 2023) The Courtmotu proprio included the names of these other respondents in the case title to conform to Sec. 1,
par. 2, Rule 7 of the Rules of Civil Procedure, as well as the capacities in which they are being sued. Moreover,
it inserted therein that respondent Usec. Aquino, as stated in the petition, is also being sued in his capacity as
DTI Undersecretary.
[1]
Effective May 28, 2003.
[2]
Annex F of Petition, rollo, p. 95.
[3]
The Petition quoted the following statement of Congressman Teves appearing in the transcript of the Committee
hearing held on October 12, 2005:
THE CHAIRPERSON. Now I call on Usec. Aquino to furnish us a copy of the draft JPEPA and enunciate to this
body the positive as well as the negative impact of said agreement. Is this the draft that the government will
sign in December or this will still be subjected to revisions in the run-up to its signing? x x x We requested
also to subpoena this but then the Speaker requested me to hold in abeyance because he wanted to
get a (sic) consent of the President before we can x x x the department can furnish us a copy of this
agreement. (Rollo, p. 32)
[4]
Id. at 16.
[5]
Annex A, Comment, rollo, p. 207.
[6]
Respondents Manifestation dated September 12, 2007; vide Business Philippines: A Department of Trade and
Industry
Website at www.business.gov.ph,
particularly www.business.gov.ph/DTI_News.php?
contentID=136(visited August 9, 2007).
[7]
Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987; 150 SCRA 530, 535.
[8]
G.R. No. 158088, July 6, 2005; 462 SCRA 622, 630-631.
[9]
Supra note 7 at 536.
[10]
Reply to the Comment of the Solicitor General, rollo, p. 319 (underscoring supplied).
[11]
Business Philippines: A
Department
of
Trade
and
Industry
Website, http://www.business.gov.ph/filedirectory/JPEPA.pdf, accessed on June 12, 2007.
[12]
By Resolution dated August 28, 2007, this Court directed the parties to manifest whether the Philippine and
Japanese offers have been made accessible to the public just like the full text of the JPEPA and, if not, whether
petitioners still intend to pursue their prayer to be provided with copies thereof. In compliance, petitioners
manifested that the offers have not yet been made public and reiterated their prayer that respondents be
compelled to provide them with copies thereof, including all pertinent attachments and annexes thereto
(Manifestation and Motion dated September 17, 2007). Respondents, on the other hand, asserted that the offers
have effectively been made accessible to the public since September 11, 2006 (Manifestation dated September
12, 2007). Respondents claim does not persuade, however. By their own manifestation, the documents posted
on the DTI website on that date were only the following: (1) Joint Statement on the Occasion of the Signing of
the Agreement between Japan and the Republic of the Philippines, (2) the full text of the JPEPA itself and its
annexes, (3) the JPEPA implementing Agreement, and (4) resource materials on the JPEPA including
presentations of the [DTI] during the hearings of the Senates Committee on Trade and Commerce and
Committee on Economic Affairs. While these documents no doubt provide very substantial information on the
JPEPA, the publication thereof still falls short of addressing the prayer of petitioners to be provided with copies
of the Philippine and Japanese offers. Thus, the petition, insofar as it prays for access to these offers, has not
become moot.
[13]
CONSTITUTION, Art. III, Sec. 7.

[14]

Id. at Art. II, Sec. 28.


Id. at Art. XIII, Sec. 16.
[16]
Supra note 7 at 541.
[17]
314 Phil. 150 (1995).
[18]
360 Phil. 133 (1998).
[19]
433 Phil. 506 (2002).
[20]
G.R. No. 169777, April 20, 2006, 488 SCRA 1.
[21]
Id. at 51.
[22]
Rollo, pp. 191-192.
[23]
360 Phil. 133, 764 (1998), citing V RECORD OF THE CONSTITUTIONAL COMMISSION 25 (1986).
[24]
G.R. No. 84642, Resolution of the Court En Banc dated September 13, 1988.
[25]
Specifically, petitioners therein asked that the Court order respondents to (1) open to petitioners their
negotiations/sessions with the U.S. counterparts on the agreement; (2) reveal and/or give petitioners access to
the items which they have already agreed upon; and (3) reveal and/or make accessible the respective positions
on items they have not agreed upon, particularly the compensation package for the continued use by the U.S. of
their military bases and facilities in the Philippines.
[15]

[26]

299 U.S. 304 (1936).


Vide Xerox Corp. v. U.S. (12 Cl.Ct. 93). Against the claim of a taxpayer for the production of a letter from
the Inland Revenue of the United Kingdom to the associate commissioner of the Internal Revenue Service
(IRS), defendant asserted a claim of privilege, relying on the affidavit of Lawrence B. Gibbs, Commissioner of
IRS, which stated that the production of the letter would impair the United States government's ability to deal
with the tax authorities of foreign governments * * * by breaching the historic confidentiality of negotiations
between the United States and foreign sovereigns * * *. (Emphasis supplied) The U.S. court therein ruled
thus: Given the context in which the letter in question was written, it is reasonable to conclude that frank and
honest expression of views on the treaty language in issue were expressed, views that ostensibly were
expressed in the belief that historic confidentiality would govern such expressions. (Underscoring supplied)
[28]
B. DuVal, Jr., Project Director, American Bar Foundation. B.A., 1958, University of Virginia; J.D.,
1961, Yale University, THE OCCASIONS OF SECRECY (47 U. Pitt. L. Rev. 579).
[29]
Supra note 20 at 46.
[30]
Ibid.
[31]
Supra note 19 at 189.
[32]
Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 162 U.S.App.D.C. 183.
[33]
Vide Arnault v. Nazareno, 87 PHIL. 29, 46 (1950): In the present case the jurisdiction of the Senate, thru the
Special Committee created by it, to investigate the Buenavista and Tambobong estates deal is not challenged by
the petitioner; and we entertain no doubt as to the Senates authority to do so and as to the validity of Resolution
No. 8 hereinabove quoted. The transaction involved a questionable and allegedly unnecessary and irregular
expenditure of no less than P5,000,000 of public funds, of which Congress is the constitutional guardian. x x x
[34]
421 U.S., at 150, 95 S.Ct. 1504, reiterated in Department of the Interior and Bureau of Indian Affairs v. Klamath
Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060.
[35]
Id. at 151, 95 S.Ct. 1504 (emphasis supplied).
[36]
Supra note 24.
[37]
545 F.Supp. 615, May 28, 1982.
[38]
237 F.Supp.2d 17.
[39]
5 U.S.C. 552(b)(5).
[40]
CIEL v. Office of U.S. Trade Representative, 237 F.Supp.2d 17. Vide Department of the Interior and Bureau of
Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060: Exemption 5 protects
from disclosure inter-agency or intra-agency memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency. 5 U.S.C. 552(b)(5). To qualify, a document must thus
satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege
against discovery under judicial standards that would govern litigation against the agency that holds it.
[41]
Supra note 20 at 46 (emphasis supplied).
[42]
Petitioners expound as follows:
It has been 18 years since the PMPF v. Manglapus case, and the world has changed considerably in that span of
time. The Berlin Wall fell in 1989, bringing down with it the Cold War and its attendant hostilities, and
ushering in a new era of globalization and international economic cooperation as we know
[27]

it. The Philippines now finds itself part of an international economic community as a member of both the
ASEAN Free Trade Area (AFTA) and the World Trade Organization (WTO). Domestically, this Honorable
Court has repeatedly upheld the peoples right to information on matters of public concern, allowing
ordinary Filipino citizens to inquire into various government actions such as GSIS loans to public officials,
settlement of Marcos ill-gotten wealth, and sale of reclaimed land to foreign corporations. (Rollo, p. 326)
[43]
Rollo, pp. 50-51.
[44]
Supra note 18.
[45]
Supra note 19.
[46]
433 Phil. 506, 534 (2002), citing PMPF v. Manglapus, supra note 24 and Chavez v. PCGG, supra note 18.
[47]
In re Sealed Case (121 F.3d 729, 326 U.S.App.D.C. 276 [1997]) states thus: Nixon, GSA, Sirica, and the
other Nixon cases all employed a balancing methodology in analyzing whether, and in what circumstances, the
presidential communications privilege can be overcome. Under this methodology, these opinions balanced
the public interests served by protecting the President's confidentiality in a particular context with those
furthered by requiring disclosure. (Emphasis supplied)
[48]
418 U.S. 683 (1974).
[49]
Supra note 31.
[50]

Supra note 47.


Supra note 32
[52]
Supra note 47.
[53]
Rollo, p. 349.
[54]
For a small sampling, vide Primer sa Japan-Philippine Economic Partnership Agreement (JPEPA)
at www.bayan.ph/downloads/Primer%20on%20jpepa.pdf; A RESOLUTION EXPRESSING SUPPORT TO
THE CALLS FOR THE SENATE TO REJECT THE JAPAN-PHILIPPINES PARTNERSHIP AGREEMENT
(JPEPA) at www.nccphilippines.org/indexfiles/Page1562.htm; JPEPA Ratification: Threat Economics at
http://www.aer.ph/index.php?option/=com_content&task=view&id=632&Itemid=63 (all sites visited on
February 2, 2008).
[55]
Entitled A DECREE TO CONSOLIDATE AND CODIFY ALL THE TARIFF AND CUSTOMS LAWS OF THE
PHILIPPINES, promulgated June 11, 1978. In light of the arguments of petitioners, the most salient portion of
the provisions cited by them is Section 402(1) which states, in part: For the purpose of expanding foreign
markets x x x in establishing and maintaining better relations between the Philippines and other countries, the
President is authorized from time to time:
(1.1) To enter into trade agreements with foreign governments or instrumentalities thereof; x x x
[56]
396 Phil. 623, 663 (2000).
[57]
G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632-633.
[58]
Supra note 55.
[59]
G.R. No. 169777, April 20, 2006, 488 SCRA 1, 44.
[60]
Id. at 68.
[61]
According to the records of this Court, the judgment in Senate v. Ermita was entered on July 21,
2006. Respondents filed their Comment on May 15, 2006.
[62]
Revised Dissenting Opinion, p. 15 (Emphasis and underscoring supplied).
[63]
450 PHIL. 744 (2003), penned by then Associate Justice Puno.
[64]
Id., at 833 (Italics in the original, emphasis and underscoring supplied)
[65]
The Federalist, No. 75 (Italics in the original, emphasis and underscoring supplied).
[66]
Article II Section 2 of the U.S. Constitution states: He [the President] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur x x x.
(Emphasis and underscoring supplied) On the other hand, Article VII Section 21 of the Philippine Constitution
states: No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate.
[51]

[67]

[68]

Supra note 18.

162 U.S. App.D.C. 183, 189.


365 F.3d 1108, 361 U.S.App.D.C. 183 (2004).
[70]
Supra note 47.
[71]
345 U.S. 1, 73 S.Ct. 528 (1953)
[69]

[72]

Supra at note 63.


Supra at note 64.
[74]
Supra note 19.
[75]
Supra at note 18.
[76]
U.S. v. Nixon (418 U.S. 683) states: Nowhere in the Constitution x x x is there any explicit reference to a
privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a Presidents
powers, it isconstitutionally based. (Emphasis, italics and underscoring supplied)
[77]
In re Sealed Case (121 F.3d 729) states thus: Nixon, GSA, Sirica, and the other Nixon cases all employed a
balancing methodology in analyzing whether, and in what circumstances, the presidential communications
privilege can be overcome. Under this methodology, these opinions balanced the public interests served by
protecting the Presidents confidentiality in a particular context with those furthered by requiring
disclosure. (Emphasis and underscoring supplied)
[78]
G.R. No. 139465, October 17, 2000, penned by then Associate Justice Reynato S. Puno.
In that case, respondent Mark Jimenez claimed under the due process clause the right to notice and
hearing in the extradition proceedings against him. Consider the following enlightening disquisition of the
Court:
In the case at bar, on one end of the balancing pole is the private respondents claim to due
process predicated on Section 1, Article III of the Constitution, which provides that No person
shall be deprived of life, liberty, or property without due process of law Without a bubble of a
doubt, procedural due process of law lies at the foundation of a civilized society which accords
paramount importance to justice and fairness. It has to be accorded the weight it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that the Court should give
more weight to our national commitment under the RP-US Extradition Treaty to expedite the
extradition to theUnited States of persons charged with violation of some of its laws. Petitioner
also emphasizes the need to defer to the judgment of the Executive on matters relating to foreign
affairs in order not to weaken if not violate the principle of separation of powers.
Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the
nature of the right being claimed by the private respondent is nebulous and the degree of prejudice
he will allegedly suffer is weak, we accord greater weight to the interests espoused by the
government thru the petitioner Secretary of Justice. x x x (Emphasis, italics, and underscoring
supplied)
[79]
Constitution, Art. XIII, Sec. 16.
[80]
433 U.S. 425.
[81]
88 Stat. 1695.
[82]
G.R. No. 180643, March 25, 2008.
[83]
Emphasis supplied.
[73]

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

BAYAN MUNA, as
represented by Rep.
SATUR OCAMPO, Rep.
CRISPIN BELTRAN, and
Rep. LIZA L. MAZA,

G.R. No. 159618

Petitioner,

CORONA, C.J.,

Present:

CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus -

LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,

ALBERTO ROMULO, in his


capacity as Executive
Secretary, and BLAS F.
OPLE, in his capacity as
Secretary of Foreign
Affairs,

PEREZ,
MENDOZA, and
SERENO, JJ.
Promulgated:

Respondents.
February 1, 2011
x-----------------------------------------------------------------------------------------x

DECISION
VELASCO, JR., J.:
The Case
This petition[1] for
under Rule 65 assails
Agreement concluded
Philippines (RP) and the

certiorari, mandamus and prohibition


and seeks to nullify the Non-Surrender
by and between the Republic of the
United States of America (USA).
The Facts

Petitioner Bayan Muna is a duly registered party-list group


established to represent the marginalized sectors of society.
Respondent Blas F. Ople, now deceased, was the Secretary of
Foreign Affairs during the period material to this case. Respondent
Alberto Romulo was impleaded in his capacity as then Executive
Secretary.[2]

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome


Statute[3] establishing the International Criminal Court (ICC)
with the power to exercise its jurisdiction over persons for the
most serious crimes of international concern x x x and shall be
complementary to the national criminal jurisdictions.[4] The
serious crimes adverted to cover those considered grave under

international law, such as genocide, crimes against humanity, war


crimes, and crimes of aggression.[5]

On December 28, 2000, the RP, through Charge


dAffaires Enrique A. Manalo, signed the Rome Statute which, by
its terms, is subject to ratification, acceptance or approval by the
signatory states.[6] As of the filing of the instant petition, only 92
out of the 139 signatory countries appear to have completed the
ratification, approval and concurrence process. The Philippines is
not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent


US Embassy Note No. 0470 to the Department of Foreign Affairs
(DFA) proposing the terms of the non-surrender bilateral
agreement (Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003


(E/N BFO-028-03, hereinafter), the RP, represented by then DFA
Secretary Ople, agreed with and accepted the US proposals
embodied under the US Embassy Note adverted to and put in
effect
the Agreement with
the
US
government. In esse,
the Agreementaims to protect what it refers to and defines
as persons of the RP and US from frivolous and harassment suits
that might be brought against them in international tribunals. [8] It
is reflective of the increasing pace of the strategic security and
defense partnership between the two countries. As of May 2,
2003, similar bilateral agreements have been effected by and
between the US and 33 other countries.[9]

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, persons are current or former


Government officials, employees (including contractors), or military
personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall


not, absent the express consent of the first Party,

(a) be surrendered or transferred by any means to any


international tribunal for any purpose, unless such tribunal
has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other


entity or third country, or expelled to a third country, for the
purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN
Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a


person of the Philippines to a third country, the [US] will not agree to
the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of
the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers


a person of the [USA] to a third country, the [GRP] will not agree to the
surrender or transfer of that person by the third country to any

international tribunal, unless such tribunal has been established by the


UN Security Council, absent the express consent of the Government of
the [US].

5. This Agreement shall remain in force until one year after the
date on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the
effective date of termination.

In response to a query of then Solicitor General Alfredo L.


Benipayo on the status of the non-surrender agreement,
Ambassador Ricciardone replied in his letter of October 28, 2003
that the exchange of diplomatic notes constituted a legally
binding agreement under international law; and that, under US
law, the said agreement did not require the advice and consent of
the US Senate.[10]

In this proceeding, petitioner imputes grave abuse of


discretion to respondents in concluding and ratifying
the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioners standing to


maintain a suit and counter that the Agreement, being in the
nature of an executive agreement, does not require Senate
concurrence for its efficacy. And for reasons detailed in their
comment,
respondents
assert
the
constitutionality
of
the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x


GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON
SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED
13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY
SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS
PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether

by
entering
into
the
x
x
x Agreement Respondents gravely abused their
discretion when they capriciously abandoned, waived
and relinquished our only legitimate recourse through
the Rome Statute of the [ICC] to prosecute and try
persons as defined in the x x x Agreement, x x x or
literally any conduit of American interests, who have
committed crimes of genocide, crimes against
humanity, war crimes and the crime of aggression,
thereby abdicating Philippine Sovereignty.

B.

Whether after the signing and pending ratification of


the Rome Statute of the [ICC] the [RP] President and
the [DFA] Secretary x x x are obliged by the principle
of good faith to refrain from doing all acts which would
substantially impair the value of the undertaking as
signed.

C.

Whether the x x x Agreement constitutes an act


which defeats the object and purpose of the Rome
Statute of the International Criminal Court and
contravenes the obligation of good faith inherent in
the signature of the President affixed on the Rome
Statute of the International Criminal Court, and if so
whether the x x x Agreement is void and
unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is

void and unenforceable for grave abuse of discretion


amounting to lack or excess of jurisdiction in
connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB


INITIO FOR CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL
OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED
PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND


EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS
(2/3) OF ALL THE MEMBERS OF THE SENATE x x x.[11]

The foregoing issues may be summarized into two: first,


whether or not the Agreement was contracted validly, which
resolves itself into the question of whether or not respondents
gravely abused their discretion in concluding it; and second,
whether or not the Agreement, which has not been submitted to

the Senate for concurrence, contravenes and undermines the


Rome Statute and other treaties. But because respondents
expectedly raised it, we shall first tackle the issue of petitioners
legal standing.
The Courts Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives,


contends that the issue of the validity or invalidity of
the Agreement carries with it constitutional significance and is of
paramount importance that justifies its standing. Cited in this
regard is what is usually referred to as the emergency powers
cases,[12] in which ordinary citizens and taxpayers were accorded
the personality to question the constitutionality of executive
issuances.
Locus standi is a right of appearance in a court of justice on
a given question.[13] Specifically, it is a partys personal and
substantial interest in a case where he has sustained or will
sustain direct injury as a result[14] of the act being challenged, and
calls for more than just a generalized grievance. [15] The term
interest refers to material interest, as distinguished from one that
is merely incidental.[16] The rationale for requiring a party who
challenges the validity of a law or international agreement to
allege such a personal stake in the outcome of the controversy is
to assure the concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends


for illumination of difficult constitutional questions. [17]

Locus standi, however, is merely a matter of procedure and


it has been recognized that, in some cases, suits are not brought
by parties who have been personally injured by the operation of a
law or any other government act, but by concerned citizens,
taxpayers, or voters who actually sue in the public interest.
[18]
Consequently, in a catena of cases,[19] this Court has invariably
adopted a liberal stance on locus standi.

Going by the petition, petitioners representatives pursue the


instant suit primarily as concerned citizens raising issues of
transcendental importance, both for the Republic and the
citizenry as a whole.

When suing as a citizen to question the validity of a law or


other government action, a petitioner needs to meet certain
specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol
ng mga Manggagawang Pilipino, Inc.[20] expounded on this
requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers


and legislators when specific requirements have been met have been
given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing
the constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law or any government act is invalid,
but also that he sustained or is in imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he

suffers thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege
to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute or act complained
of. In fine, when the proceeding involves the assertion of a public right,
the mere fact that he is a citizen satisfies the requirement of personal
interest.[21]

In the case at bar, petitioners representatives have complied


with the qualifying conditions or specific requirements exacted
under the locus standi rule. As citizens, their interest in the
subject matter of the petition is direct and personal. At the very
least, their assertions questioning the Agreement are made of a
public right, i.e., to ascertain that the Agreement did not go
against established national policies, practices, and obligations
bearing on the States obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in


general of the issue at hand impels the Court to brush aside the
procedural barrier posed by the traditional requirement of locus
standi, as we have done in a long line of earlier cases, notably in
the old but oft-cited emergency powers cases [22] and Kilosbayan v.
Guingona, Jr.[23] In cases of transcendental importance, we wrote
again in Bayan v. Zamora,[24] The Court may relax the standing
requirements and allow a suit to prosper even where there is no
direct injury to the party claiming the right of judicial review.

Moreover, bearing in mind what the Court said in Taada v.


Angara, that it will not shirk, digress from or abandon its sacred
duty and authority to uphold the Constitution in matters that
involve grave abuse of discretion brought before it in appropriate
cases, committed by any officer, agency, instrumentality or
department of the government,[25] we cannot but resolve head on

the issues raised before us. Indeed, where an action of any branch
of government is seriously alleged to have infringed the
Constitution or is done with grave abuse of discretion, it becomes
not only the right but in fact the duty of the judiciary to settle
it. As in this petition, issues are precisely raised putting to the fore
the propriety of the Agreement pending the ratification of the
Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against the Agreement relates to


form, its threshold posture being that E/N BFO-028-03 cannot be a
valid medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain wellrecognized international doctrines, practices, and jargonsis
untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the
Philippines adopts the generally accepted principles of
international law and international jurisprudence as part of the
law of the land and adheres to the policy of peace, cooperation,
and amity with all nations.[26] An exchange of notes falls into the
category of inter-governmental agreements, [27] which is an
internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide) defines
the term as follows:

An exchange of notes is a record of a routine agreement, that


has many similarities with the private law contract. The agreement
consists of the exchange of two documents, each of the parties being

in the possession of the one signed by the representative of the other.


Under the usual procedure, the accepting State repeats the text of the
offering State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either
because of its speedy procedure, or, sometimes, to avoid the process
of legislative approval.[28]

In another perspective, the terms exchange of notes and


executive agreements have been used interchangeably, exchange
of notes being considered a form of executive agreement that
becomes binding through executive action. [29] On the other hand,
executive agreements concluded by the President sometimes take
the form of exchange of notes and at other times that of more
formal documents denominated agreements or protocols. [30] As
former US High Commissioner to the Philippines Francis B. Sayre
observed in his work, The Constitutionality of Trade Agreement
Acts:
The point where ordinary correspondence between this and
other governments ends and agreements whether denominated
executive agreements or exchange of notes or otherwise begin, may
sometimes be difficult of ready ascertainment.[31] x x x

It is fairly clear from the foregoing disquisition that E/N BFO028-03be it viewed as the Non-Surrender Agreement itself, or as
an integral instrument of acceptance thereof or as consent to be
boundis a recognized mode of concluding a legally binding
international written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties


defines a treaty as an international agreement concluded
between states in written form and governed by international
law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation.
[32]
International agreements may be in the form of (1) treaties
that require legislative concurrence after executive ratification; or
(2) executive agreements that are similar to treaties, except that
they do not require legislative concurrence and are usually less
formal and deal with a narrower range of subject matters than
treaties.[33]

Under international law, there is no difference between


treaties and executive agreements in terms of their binding
effects on the contracting states concerned, [34] as long as the
negotiating functionaries have remained within their powers.
[35]
Neither, on the domestic sphere, can one be held valid if it
violates the Constitution.[36] Authorities are, however, agreed that
one is distinct from another for accepted reasons apart from the
concurrence-requirement aspect.[37] As has been observed by US
constitutional scholars, a treaty has greater dignity than an
executive agreement, because its constitutional efficacy is
beyond doubt, a treaty having behind it the authority of the
President, the Senate, and the people; [38] a ratified treaty, unlike
an executive agreement, takes precedence over any prior
statutory enactment.[39]

Petitioner parlays the notion that the Agreement is of


dubious validity, partaking as it does of the nature of a treaty;
hence, it must be duly concurred in by the Senate. Petitioner
takes a cue from Commissioner of Customs v. Eastern Sea
Trading, in which the Court reproduced the following observations

made by US legal scholars: [I]nternational agreements involving


political issues or changes of national policy and those involving
international arrangements of a permanent character usually take
the form of treaties [while] those embodying adjustments of detail
carrying out well established national policies and traditions and
those involving arrangements of a more or less temporary
nature take the form of executive agreements. [40]

Pressing its point, petitioner submits that the subject of


the Agreement does not fall under any of the subject-categories
that are enumerated in the Eastern Sea Trading case, and that
may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent
rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant


case of Adolfo v. CFI of Zambales and Merchant,[41] holding that an
executive agreement through an exchange of notes cannot be
used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered


by international agreements mentioned in Eastern Sea Trading is
not cast in stone. There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international
relations. The primary consideration in the choice of the form of

agreement is the parties intent and desire to craft an international


agreement in the form they so wish to further their respective
interests. Verily, the matter of form takes a back seat when it
comes to effectiveness and binding effect of the enforcement of a
treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt
servanda[42] principle.

As may be noted, almost half a century has elapsed since


the Court rendered its decision in Eastern Sea Trading. Since then,
the conduct of foreign affairs has become more complex and the
domain of international law wider, as to include such subjects as
human rights, the environment, and the sea. In fact, in
the US alone, the executive agreements executed by its President
from 1980 to 2000 covered subjects such as defense, trade,
scientific cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear safety,
among others.[43] Surely, the enumeration in Eastern Sea
Trading cannot circumscribe the option of each state on the
matter of which the international agreement format would be
convenient to serve its best interest. As Francis Sayre said in his
work referred to earlier:
x x x It would be useless to undertake to discuss here the large
variety of executive agreements as such concluded from time to time.
Hundreds of executive agreements, other than those entered into
under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of
vessels, navigation dues, income tax on shipping profits, the admission
of civil air craft, custom matters and commercial relations generally,
international claims, postal matters, the registration of trademarks and
copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement


is a treaty-authorized[44] or a treaty-implementing executive
agreement,[45] which necessarily would cover the same matters
subject of the underlying treaty.

But over and above the foregoing considerations is the fact


thatsave for the situation and matters contemplated in Sec. 25,
Art. XVIII of the Constitution [46]when a treaty is required, the
Constitution does not classify any subject, like that involving
political issues, to be in the form of, and ratified as, a treaty. What
the Constitution merely prescribes is that treaties need the
concurrence of the Senate by a vote defined therein to complete
the ratification process.

Petitioners reliance on Adolfo[47] is misplaced, said case being


inapplicable owing to different factual milieus. There, the Court
held that an executive agreement cannot be used to amend a
duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an
executive agreement that does not require the concurrence of the
Senate for its ratification may not be used to amend a treaty that,
under the Constitution, is the product of the ratifying acts of the
Executive and the Senate. The presence of a treaty, purportedly
being subject to amendment by an executive agreement, does
not obtain under the premises.

Considering the above discussion, the Court need not


belabor at length the third main issue raised, referring to the
validity and effectivity of the Agreementwithout the concurrence
by at least two-thirds of all the members of the Senate. The Court
has, in Eastern Sea Trading,[48] as reiterated in Bayan,[49] given

recognition to the obligatory effect of executive agreements


without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding


agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days of
our history, we have entered executive agreements covering such
subjects as commercial and consular relations, most favored-nation
rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It
is
the
petitioners
next
contention
that
the Agreement undermines the establishment of the ICC and is
null and void insofar as it unduly restricts the ICCs jurisdiction and
infringes upon the effectivity of the Rome Statute. Petitioner
posits that the Agreement was constituted solely for the purpose
of providing individuals or groups of individuals with immunity
from the jurisdiction of the ICC; and such grant of immunity
through
non-surrender
agreements
allegedly
does
not
legitimately fall within the scope of Art. 98 of the Rome Statute. It
concludes that state parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute,
thereby constituting a breach of Arts. 27, [50] 86,[51] 89[52] and
90[53] thereof.
Petitioner stresses that the overall object and purpose of the
Rome Statute is to ensure that those responsible for the worst

possible crimes are brought to justice in all cases, primarily by


states, but as a last resort, by the ICC; thus, any agreementlike
the non-surrender agreementthat precludes the ICC from
exercising its complementary function of acting when a state is
unable to or unwilling to do so, defeats the object and purpose of
the Rome Statute.

Petitioner would add that the President and the DFA


Secretary, as representatives of a signatory of the Rome Statute,
are obliged by the imperatives of good faith to refrain from
performing acts that substantially devalue the purpose and object
of the Statute, as signed. Adding a nullifying ingredient to
the Agreement, according to petitioner, is the fact that it has an
immoral purpose or is otherwise at variance with a priorly
executed treaty.

Contrary to petitioners pretense, the Agreement does not


contravene or undermine, nor does it differ from, the Rome
Statute. Far from going against each other, one complements the
other. As a matter of fact, the principle of complementarity
underpins the creation of the ICC. As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the
ICC is to be complementary to national criminal jurisdictions [of
the signatory states].[54] Art. 1 of the Rome Statute pertinently
provides:

Article 1

The Court

An International Crimininal Court (the Court) is hereby


established. It x x x shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary
to national criminal jurisdictions. The jurisdiction and functioning
of the Court shall be governed by the provisions of this
Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome


Statute declares that it is the duty of every State to exercise its
criminal jurisdiction over those responsible for international
crimes. This provision indicates that primary jurisdiction over the
so-called international crimes rests, at the first instance, with the
state where the crime was committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17, par. 1 [55] of
the Rome Statute.

Of particular note is the application of the principle of ne bis


in idem[56] under par. 3 of Art. 20, Rome Statute, which again
underscores the primacy of the jurisdiction of a state vis-a-vis that
of the ICC. As far as relevant, the provision states that no person
who has been tried by another court for conduct x x x
[constituting crimes within its jurisdiction] shall be tried by the

[International Criminal] Court with respect to the same conduct x


x x.

The foregoing provisions of the Rome Statute, taken


collectively, argue against the idea of jurisdictional conflict
between the Philippines, as party to the non-surrender
agreement,
and
the
ICC;
or
the
idea
of
the Agreement substantially impairing the value of the RPs
undertaking under the Rome Statute. Ignoring for a while the fact
that the RP signed the Rome Statute ahead of the Agreement, it is
abundantly clear to us that the Rome Statute expressly
recognizes the primary jurisdiction of states, like the RP, over
serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when
the signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat


the RP, by entering into the Agreement, violated its duty required
by the imperatives of good faith and breached its commitment
under the Vienna Convention[57] to refrain from performing any act
tending to impair the value of a treaty, e.g., the Rome Statutehas
to be rejected outright. For nothing in the provisions of
the Agreement, in relation to the Rome Statute, tends to diminish
the efficacy of the Statute, let alone defeats the purpose of the
ICC. Lest it be overlooked, the Rome Statute contains a proviso
that enjoins the ICC from seeking the surrender of an erring
person, should the process require the requested state to perform
an act that would violate some international agreement it has
entered into. We refer to Art. 98(2) of the Rome Statute, which
reads:

Article 98

Cooperation with respect to waiver of immunity


and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender


which would require the requested State to act inconsistently with
its obligations under international agreements pursuant to which
the consent of a sending State is required to surrender a person of
that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the
surrender.

Moreover, under international law, there is a considerable


difference between a State-Party and a signatory to a treaty.
Under the Vienna Convention on the Law of Treaties, a signatory
state is only obliged to refrain from acts which would defeat the
object and purpose of a treaty; [58] whereas a State-Party, on the
other hand, is legally obliged to follow all the provisions of a
treaty in good faith.

In the instant case, it bears stressing that the Philippines is


only a signatory to the Rome Statute and not a State-Party for
lack of ratification by the Senate. Thus, it is only obliged to refrain
from acts which would defeat the object and purpose of the Rome

Statute. Any argument obliging the Philippines to follow any


provision in the treaty would be premature.

As a result, petitioners argument that State-Parties with nonsurrender agreements are prevented from meeting their
obligations under the Rome Statute, specifically Arts. 27, 86, 89
and 90, must fail. These articles are only legally binding upon
State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show


that the Agreement is not incompatible with the Rome Statute.
Specifically, Art. 90(4) provides that [i]f the requesting State is a
State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the
requesting State, shall give priority to the request for surrender
from the Court. x x x In applying the provision, certain undisputed
facts should be pointed out: first, the US is neither a State-Party
nor a signatory to the Rome Statute; and second, there is an
international
agreement
between
the US and
the Philippines regarding extradition or surrender of persons, i.e.,
the Agreement. Clearly, even assuming that the Philippines is a
State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when
one of the States is not a State-Party to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner
next
argues
that
the
RP has,
through
the Agreement, abdicated its sovereignty by bargaining away the

jurisdiction of the ICC to prosecute US nationals, government


officials/employees or military personnel who commit serious
crimes of international concerns in the Philippines. Formulating
petitioners argument a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its sovereignty, abdication
being done by its waiving or abandoning its right to seek recourse
through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a


form of affirmance and confirmance of the Philippines national
criminal jurisdiction. National criminal jurisdiction being primary,
as explained above, it is always the responsibility and within the
prerogative of the RP either to prosecute criminal offenses equally
covered by the Rome Statute or to accede to the jurisdiction of
the ICC. Thus, the Philippines may decide to try persons of the US,
as the term is understood in theAgreement, under our national
criminal justice system. Or it may opt not to exercise its criminal
jurisdiction over its erring citizens or over US persons committing
high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them. As to persons of the US whom
the Philippines refuses to prosecute, the country would, in effect,
accord discretion to the US to exercise either its national criminal
jurisdiction over the person concerned or to give its consent to
the referral of the matter to the ICC for trial. In the same breath,
the US must extend the same privilege to the Philippines with
respect to persons of the RP committing high crimes
within US territorial jurisdiction.

In the context of the Constitution, there can be no serious


objection to the Philippines agreeing to undertake the things set
forth in the Agreement. Surely, one State can agree to waive
jurisdictionto the extent agreed uponto subjects of another State
due to the recognition of the principle of extraterritorial
immunity. What the Court wrote in Nicolas v. Romulo[59]a case
involving the implementation of the criminal jurisdiction
provisions of the RP-US Visiting Forces Agreementis apropos:

Nothing in the Constitution prohibits such agreements


recognizing immunity from jurisdiction or some aspects of jurisdiction
(such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed
forces contingents of a foreign State allowed to enter another States
territory. x x x

To be sure, the nullity of the subject non-surrender


agreement cannot be predicated on the postulate that some of its
provisions constitute a virtual abdication of its sovereignty. Almost
every time a state enters into an international agreement, it
voluntarily sheds off part of its sovereignty. The Constitution, as
drafted, did not envision a reclusive Philippines isolated from the
rest of the world. It even adheres, as earlier stated, to the policy
of cooperation and amity with all nations. [60]

By their nature, treaties and international agreements


actually have a limiting effect on the otherwise encompassing and
absolute nature of sovereignty. By their voluntary act, nations
may decide to surrender or waive some aspects of their state
power or agree to limit the exercise of their otherwise exclusive
and absolute jurisdiction. The usual underlying consideration in
this partial surrender may be the greater benefits derived from a

pact or a reciprocal undertaking of one contracting party to grant


the same privileges or immunities to the other. On the rationale
that the Philippines has adopted the generally accepted principles
of international law aspart of the law of the land, a portion of
sovereignty may be waived without violating the Constitution.
[61]
Such waiver does not amount to an unconstitutional diminution
or deprivation of jurisdiction of Philippine courts. [62]

Agreement Not Immoral/Not at Variance


with Principles of International Law

Petitioner urges that the Agreement be struck down as


void ab initio for imposing immoral obligations and/or being at
variance with allegedly universally recognized principles of
international law. The immoral aspect proceeds from the fact that
the Agreement, as petitioner would put it, leaves criminals
immune from responsibility for unimaginable atrocities that
deeply shock the conscience of humanity; x x x it precludes our
country from delivering an American criminal to the [ICC] x x x. [63]

The above argument is a kind of recycling of petitioners


earlier position, which, as already discussed, contends that the
RP, by entering into the Agreement,virtually abdicated its
sovereignty and in the process undermined its treaty obligations
under the Rome Statute, contrary to international law principles.
[64]

The Court is not persuaded. Suffice it to state in this regard


that the non-surrender agreement, as aptly described by the
Solicitor General, is an assertion by thePhilippines of its desire to
try and punish crimes under its national law. x x x The agreement
is a recognition of the primacy and competence of the countrys
judiciary to try offenses under its national criminal laws and
dispense justice fairly and judiciously.

Petitioner, we believe, labors under the erroneous impression


that the Agreement would allow Filipinos and Americans
committing high crimes of international concern to escape
criminal trial and punishment. This is manifestly incorrect. Persons
who may have committed acts penalized under the Rome Statute
can be prosecuted and punished in the Philippines or in the US; or
with the consent of the RP or the US, before the ICC, assuming,
for the nonce, that all the formalities necessary to bind both
countries to the Rome Statute have been met. For perspective,
what the Agreement contextually prohibits is the surrender by
either party of individuals to international tribunals, like the ICC,
without the consent of the other party, which may desire to
prosecute the crime under its existing laws. With the view we take
of things, there is nothing immoral or violative of international law
concepts in the act of the Philippines of assuming criminal
jurisdiction pursuant to the non-surrender agreement over an
offense considered criminal by both Philippine laws and the Rome
Statute.
No Grave Abuse of Discretion

Petitioners final point revolves around the necessity of the


Senates concurrence in the Agreement. And without specifically
saying so, petitioner would argue that the non-surrender

agreement was executed by the President, thru the DFA


Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of
the above posture of petitioner, the same having been discussed
at length earlier on. As to the second portion, We wish to state
that petitioner virtually faults the President for performing,
through respondents, a task conferred the President by the
Constitutionthe power to enter into international agreements.

By constitutional fiat and by the nature of his or her office,


the President, as head of state and government, is the sole organ
and authority in the external affairs of the country. [65] The
Constitution vests in the President the power to enter into
international agreements, subject, in appropriate cases, to the
required concurrence votes of the Senate. But as earlier indicated,
executive agreements may be validly entered into without such
concurrence. As the President wields vast powers and influence,
her conduct in the external affairs of the nation is, as Bayan would
put it, executive altogether. The right of the President to enter
into or ratify binding executive agreements has been confirmed
by long practice.[66]

In thus agreeing to conclude the Agreement thru E/N BFO028-03, then President Gloria Macapagal-Arroyo, represented by
the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the
end of the day, the Presidentby ratifying, thru her deputies, the
non-surrender agreementdid nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her
office.

While the issue of ratification of the Rome Statute is not


determinative of the other issues raised herein, it may perhaps be
pertinent to remind all and sundry that about the time this
petition was interposed, such issue of ratification was laid to rest
in Pimentel, Jr. v. Office of the Executive Secretary. [67] As the Court
emphasized in said case, the power to ratify a treaty, the Statute
in that instance, rests with the President, subject to the
concurrence of the Senate, whose role relative to the ratification
of a treaty is limited merely to concurring in or withholding the
ratification. And concomitant with this treaty-making power of the
President is his or her prerogative to refuse to submit a treaty to
the Senate; or having secured the latters consent to the
ratification of the treaty, refuse to ratify it. [68] This prerogative, the
Court hastened to add, is the Presidents alone and cannot be
encroached upon via a writ of mandamus. Barring intervening
events, then, the Philippines remains to be just a signatory to the
Rome Statute. Under Art. 125[69] thereof, the final acts required to
complete the treaty process and, thus, bring it into force, insofar
as thePhilippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into


law Republic Act No. (RA) 9851, otherwise known as the Philippine
Act on Crimes Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity. Sec. 17 of RA 9851,
particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. x x x x

In
the
interest
of
justice,
the
relevant
Philippine
authorities may dispense with the investigation or prosecution of a
crime punishable under this Act if another court or international
tribunal is already conducting the investigation or undertaking the
prosecution of such crime. Instead, the authorities may surrender
or extradite suspected or accused persons in the Philippines to
the appropriate international court, if any, or to another State
pursuant
to
the
applicable
extradition
laws
and
treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing


municipal laws on the States obligation in relation to grave crimes
against the law of nations, i.e., genocide, crimes against humanity
and war crimes. Relying on the above-quoted statutory proviso,
the view posits that the Philippine is required to surrender to the
proper international tribunal those persons accused of the grave
crimes defined under RA 9851, if it does not exercise its primary
jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does
not decide to prosecute a foreign national for violations of RA
9851, the Philippines has only two options, to wit: (1) surrender
the accused to the proper international tribunal; or (2) surrender
the accused to another State if such surrender is pursuant to the
applicable extradition laws and treaties. But the Philippines may
exercise these options only in cases where another court or
international tribunal is already conducting the investigation or
undertaking the prosecution of such crime; otherwise,
the Philippines must prosecute the crime before its own courts
pursuant to RA 9851.

Posing the situation of a US national under prosecution by an


international tribunal for any crime under RA 9851,

the Philippines has the option to surrender such US national to the


international tribunal if it decides not to prosecute
such US national here. The view asserts that this option of
the Philippines under Sec. 17 of RA 9851 is not subject to the
consent of the US, and any derogation of Sec. 17 of RA 9851, such
as requiring the consent of the US before the Philippines can
exercise such option, requires an amendatory law. In line with this
scenario, the view strongly argues that the Agreement prevents
the Philippineswithout the consent of the USfrom surrendering to
any international tribunal US nationals accused of crimes covered
by RA 9851, and, thus, in effect amends Sec. 17 of RA
9851.Consequently, the view is strongly impressed that
the Agreement cannot be embodied in a simple executive
agreement in the form of an exchange of notes but must be
implemented through an extradition law or a treaty with the
corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2,


Art. II of the Constitution, where the Philippines adopts, as a
national policy, the generally accepted principles of
international law as part of the law of the land, the Court is
further impressed to perceive the Rome Statute as declaratory of
customary international law. In other words, the Statute embodies
principles of law which constitute customary international law or
custom and for which reason it assumes the status of an
enforceable domestic law in the context of the aforecited
constitutional provision. As a corollary, it is argued that any
derogation from the Rome Statute principles cannot be
undertaken via a mere executive agreement, which, as an
exclusive act of the executive branch, can only implement, but
cannot amend or repeal, an existing law. The Agreement, so the

argument goes, seeks to frustrate the objects of the principles of


law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus


advanced considers the Agreement inefficacious, unless it is
embodied in a treaty duly ratified with the concurrence of the
Senate, the theory being that a Senate- ratified treaty partakes of
the nature of a municipal law that can amend or supersede
another law, in this instance Sec. 17 of RA 9851 and the status of
the Rome Statute as constitutive of enforceable domestic law
under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For


one, we find that the Agreement does not amend or is repugnant
to RA 9851. For another, the view does not clearly state what
precise principles of law, if any, the Agreement alters. And for a
third, it does not demonstrate in the concrete how
the Agreement seeks to frustrate the objectives of the principles
of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not
undermine the Rome Statute as the former merely reinforces the
primacy
of
the
national
jurisdiction
of
the US and
the Philippines in prosecuting criminal offenses committed by
their respective citizens and military personnel, among
others. The jurisdiction of the ICC pursuant to the Rome Statute
over high crimes indicated thereat is clearly and unmistakably
complementary to the national criminal jurisdiction of the
signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the


crimes against international humanitarian law, genocide and
other crimes against humanity;[70] (2) provides penal sanctions
and criminal liability for their commission; [71] and (3) establishes
special courts for the prosecution of these crimes and for the
State to exercise primary criminal jurisdiction. [72] Nowhere in RA
9851 is there a proviso that goes against the tenor of
the Agreement.
The view makes much of the above quoted second par. of
Sec. 17, RA 9851 as requiring the Philippine State to surrender
to the proper international tribunal those persons accused of
crimes sanctioned under said law if it does not exercise its
primary jurisdiction to prosecute such persons. This view is not
entirely correct, for the above quoted proviso clearly
provides discretion to the Philippine State on whether to
surrender or not a person accused of the crimes under RA
9851. The statutory proviso uses the word may. It is settled
doctrine in statutory construction that the word may denotes
discretion, and cannot be construed as having mandatory effect.
[73]
Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.
Besides, even granting that the surrender of a person is
mandatorily required when the Philippines does not exercise its
primary jurisdiction in cases where another court or international
tribunal is already conducting the investigation or undertaking the
prosecution of such crime, still, the tenor of the Agreement is not
repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides
that the surrender may be made to another State pursuant to the
applicable extradition laws and treaties. The Agreement can
already be considered a treaty following this Courts decision
in Nicolas v. Romulo[74] which cited Weinberger v. Rossi.
[75]
In Nicolas, We held that an executive agreement is a treaty
within the meaning of that word in international law and
constitutes enforceable domestic law vis--vis the United States.[76]

Likewise, the Philippines and the US already have an existing


extradition treaty, i.e., RP-US Extradition Treaty, which was
executed on November 13, 1994. The pertinent Philippine law, on
the other hand, is Presidential Decree No. 1069, issued on January
13, 1977. Thus, the Agreement, in conjunction with the RP-US
Extradition Treaty, would neither violate nor run counter to Sec.
17 of RA 9851.
The views reliance on Suplico v. Neda[77] is similarly improper.
In that case, several petitions were filed questioning the power of
the President to enter into foreign loan agreements. However,
before the petitions could be resolved by the Court, the Office of
the Solicitor General filed a Manifestation and Motion averring
that the Philippine Government decided not to continue with the
ZTE National Broadband Network Project, thus rendering the
petition moot. In resolving the case, the Court took judicial notice
of the act of the executive department of the Philippines (the
President) and found the petition to be indeed moot. Accordingly,
it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio
discussed the legal implications of an executive agreement. He
stated that an executive agreement has the force and effect of
law x x x [it] cannot amend or repeal prior laws.[78] Hence, this
argument finds no application in this case seeing as RA 9851 is a
subsequent law, not a prior one. Notably, this argument cannot be
found in the ratio decidendi of the case, but only in the dissenting
opinion.
The view further contends that the RP-US Extradition Treaty
is inapplicable to RA 9851 for the reason that under par. 1, Art. 2
of the RP-US Extradition Treaty, [a]n offense shall be an
extraditable offense if it is punishable under the laws in both
Contracting Parties x x x,[79] and thereby concluding that while
the Philippines has criminalized under RA 9851 the acts defined in
the Rome Statute as war crimes, genocide and other crimes

against humanity, there is no similar legislation in the US. It is


further argued that, citing U.S. v. Coolidge, in the US, a person
cannot be tried in the federal courts for an international crime
unless Congress adopts a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation
punishing the high crimes mentioned earlier. In fact, as early as
October 2006, the US enacted a law criminalizing war crimes.
Section 2441, Chapter 118, Part I, Title 18 of the United States
Code Annotated (USCA) provides for the criminal offense of war
crimes which is similar to the war crimes found in both the Rome
Statute and RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United States,
commits a war crime, in any of the circumstances described in
subsection (b), shall be fined under this title or imprisoned for life or
any term of years, or both, and if death results to the victim, shall
also be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are
that the person committing such war crime or the victim of such
war crime is a member of the Armed Forces of the United States or
a national of the United States (as defined in Section 101 of the
Immigration and Nationality Act).
(c) Definition As used in this Section the term war crime means any
conduct
(1) Defined as a grave breach in any of the international
conventions signed at Geneva 12 August 1949, or any protocol
to such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of War
on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as
defined in subsection [d]) when committed in the context of and
in association with an armed conflict not of an international
character; or

(4) Of a person who, in relation to an armed conflict and contrary


to the provisions of the Protocol on Prohibitions or Restrictions
on the Use of Mines, Booby-Traps and Other Devices as amended
at Geneva on 3 May 1996 (Protocol II as amended on 3 May
1996), when the United States is a party to such Protocol,
willfully kills or causes serious injury to civilians. [80]

Similarly, in December 2009, the US adopted a law that


criminalized genocide, to wit:
1091. Genocide

(a)
Basic Offense Whoever, whether in the time of peace
or in time of war and with specific intent to destroy, in whole or
in substantial part, a national, ethnic, racial or religious group as
such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties
of members of the group through drugs, torture, or similar
techniques;
(4) subjects the group to conditions of life that are intended
to cause the physical destruction of the group in whole or in
part;
(5) imposes measures intended to prevent births within the
group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b). [81]

Arguing further, another view has been advanced that the


current US laws do not cover every crime listed within the
jurisdiction of the ICC and that there is a gap between the
definitions of the different crimes under the US laws versus the
Rome Statute. The view used a report written by Victoria K. Holt
and Elisabeth W. Dallas, entitled On Trial: The US Military and the
International Criminal Court, as its basis.

At the outset, it should be pointed out that the report used may
not have any weight or value under international law. Article 38 of
the Statute of the International Court of Justice (ICJ) lists the
sources of international law, as follows: (1) international
conventions, whether general or particular, establishing rules
expressly recognized by the contesting states; (2) international
custom, as evidence of a general practice accepted as law; (3)
the general principles of law recognized by civilized nations; and
(4) subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination
of rules of law. The report does not fall under any of the foregoing
enumerated sources. It cannot even be considered as the
teachings of highly qualified publicists. A highly qualified publicist
is a scholar of public international law and the term usually refers
to legal scholars or academic writers. [82] It has not been shown
that the authors[83] of this report are highly qualified publicists.
Assuming arguendo that the report has weight, still, the
perceived gaps in the definitions of the crimes are nonexistent.
To highlight, the table below shows the definitions of genocide
and war crimes under the Rome Statute vis--vis the definitions
under US laws:

Rome Statute
Article 6

US Law
1091. Genocide

Genocide
For the purpose of this Statute,
genocide means any of the following
acts committed with intent to
destroy, in whole or in part, a
national, ethnical, racial or religious
group, as such:

(a) Basic Offense Whoever, whether


in the time of peace or in time of war
and with specific intent to destroy, in
whole or in substantial part, a
national, ethnic, racial or religious
group as such

(a) Killing members of the group;

(1) kills members of that group;

(b) Causing serious bodily or mental


harm to members of the group;

(2) causes serious bodily injury to


members of that group;

(c) Deliberately inflicting on the group


conditions of life calculated to
bring
about
its
physical
destruction in whole or in part;

(3) causes the permanent impairment


of the mental faculties of
members of the group through
drugs,
torture,
or
similar
techniques;

(d) Imposing measures intended to


prevent births within the group;
(e) Forcibly transferring children of
the group to another group.

(4) subjects the group to conditions of


life that are intended to cause
the physical destruction of the
group in whole or in part;
(5) imposes measures intended to
prevent births within the group;
or
(6) transfers by force children of the
group to another group;
shall be punished as provided in
subsection (b).

Article 8
War Crimes
2. For the purpose of this Statute, war
crimes means:
(a) Grave breaches of the Geneva
Conventions of 12 August 1949,
namely, any of the following acts
against persons or property protected
under the provisions of the relevant
Geneva Convention: x x x[84]
(b) Other serious violations of the
laws and customs applicable in
international armed conflict, within
the established framework of
international law, namely, any of the
following acts:
xxxx
(c) In the case of an armed conflict
not of an international character,
serious violations of article 3 common
to the four Geneva Conventions of 12

(a) Definition As used in this Section


the term war crime means any
conduct
(1) Defined as a grave breach in
any
of
the
international
conventions
signed
at Geneva12 August 1949, or
any protocol to such convention
to which the United States is a
party;
(2) Prohibited by Article 23, 25, 27
or 28 of the Annex to the
Hague Convention
IV,
Respecting
the
Laws
and
Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave
breach of common Article 3 (as
defined in subsection [d][85])
when committed in the context
of and in association with an
armed conflict not of an
international character; or

August 1949, namely, any of the


following acts committed against
persons taking no active part in the
hostilities, including members of
armed forces who have laid down
their arms and those placed hors de
combat by sickness, wounds,
detention or any other cause:
xxxx

(d) Paragraph 2 (c) applies to armed


conflicts not of an international
character and thus does not apply to
situations of internal disturbances
and tensions, such as riots, isolated
and sporadic acts of violence or other
acts of a similar nature.

(4) Of a person who, in relation to


an armed conflict and contrary
to the provisions of the Protocol
on Prohibitions or Restrictions
on the Use of Mines, BoobyTraps and Other Devices as
amended at Geneva on 3 May
1996 (Protocol II as amended on
3 May 1996), when the United
States is a party to such
Protocol, willfully kills or causes
serious injury to civilians.[86]

(e) Other serious violations of the


laws and customs applicable in
armed conflicts not of an
international character, within the
established framework of
international law, namely, any of the
following acts: x x x.

Evidently, the gaps pointed out as to the definition of the crimes


are not present. In fact, the report itself stated as much, to wit:
Few believed there were wide differences between the crimes
under the jurisdiction of the Court and crimes within the Uniform Code
of Military Justice that would expose US personnel to the Court.
Since US military lawyers were instrumental in drafting the elements of
crimes outlined in the Rome Statute, they ensured that most of the
crimes were consistent with those outlined in the UCMJ and gave
strength to complementarity for the US. Small areas of potential gaps
between the UCMJ and the Rome Statute, military experts argued,
could be addressed through existing military laws. [87] x x x

The report went on further to say that [a]ccording to those


involved, the elements of crimes laid out in the Rome Statute

have been part of US military doctrine for decades.[88] Thus, the


argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation,
the US notably follows the doctrine of incorporation. As early as
1900, the esteemed Justice Gray inThe Paquete Habana[89] case
already held international law as part of the law of the US, to wit:
International

law is part of our law, and must be


ascertained and administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no
treaty and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages of civilized
nations, and, as evidence of these, to the works of jurists and
commentators who by years of labor, research, and experience have
made themselves peculiarly well acquainted with the subjects of which
they treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but
for the trustworthy evidence of what the law really is. [90] (Emphasis
supplied.)

Thus, a person can be tried in the US for an international


crime despite the lack of domestic legislation. The cited ruling
in U.S. v. Coolidge,[91] which in turn is based on the holding in U.S.
v. Hudson,[92] only applies to common law and not to the law of
nations or international law.[93] Indeed, the Court in U.S. v.
Hudsononly considered the question, whether the Circuit Courts of
the United States can exercise a common law jurisdiction in
criminal cases.[94] Stated otherwise, there is no common law crime
in the US but this is considerably different from international law.
The US doubtless recognizes international law as part of the
law of the land, necessarily including international crimes, even
without any local statute.[95] In fact, years later, US courts would
apply international law as a source of criminal liability despite the

lack of a local statute criminalizing it as such. So it was that in Ex


Parte Quirin[96] the US Supreme Court noted that [f]rom the very
beginning of its history this Court has recognized and applied the
law of war as including that part of the law of nations which
prescribes, for the conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals. [97] It went on
further to explain that Congress had not undertaken the task of
codifying the specific offenses covered in the law of war, thus:
It is no objection that Congress in providing for the trial of such
offenses has not itself undertaken to codify that branch of
international law or to mark its precise boundaries, or to
enumerate or define by statute all the acts which that law
condemns. An Act of Congress punishing the crime of piracy as
defined by the law of nations is an appropriate exercise of its
constitutional authority, Art. I, s 8, cl. 10, to define and punish the
offense since it has adopted by reference the sufficiently precise
definition of international law. x x x Similarly by the reference in the
15th Article of War to offenders or offenses that x x x by the law of war
may be triable by such military commissions. Congress has
incorporated by reference, as within the jurisdiction of military
commissions, all offenses which are defined as such by the law of war
x x x, and which may constitutionally be included within that
jurisdiction.[98] x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes


against humanity. It has been held that genocide, war crimes and
crimes against humanity have attained the status of customary
international law. Some even go so far as to state that these
crimes have attained the status of jus cogens.[99]
Customary international law or international custom is a
source of international law as stated in the Statute of the ICJ. [100] It
is defined as the general and consistent practice of states
recognized and followed by them from a sense of legal obligation.
[101]
In order to establish the customary status of a particular
norm, two elements must concur: State practice, the objective
element; and opinio juris sive necessitates, the subjective
element.[102]

State practice refers to the continuous repetition of the same


or similar kind of acts or norms by States. [103] It is demonstrated
upon the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration. [104] While, opinio
juris, the psychological element, requires that the state practice
or norm be carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence of a rule
of law requiring it.[105]
The term jus cogens means the compelling law.[106] Corollary,
a jus cogens norm holds the highest hierarchical position among
all other customary norms and principles. [107] As a result, jus
cogens norms are deemed peremptory and non-derogable.
[108]
When applied to international crimes, jus cogens crimes have
been deemed so fundamental to the existence of a just
international legal order that states cannot derogate from them,
even by agreement.[109]
These jus cogens crimes relate to the principle of universal
jurisdiction, i.e., any state may exercise jurisdiction over an
individual who commits certain heinous and widely condemned
offenses, even when no other recognized basis for jurisdiction
exists.[110] The rationale behind this principle is that the crime
committed is so egregious that it is considered to be committed
against all members of the international community [111] and thus
granting every State jurisdiction over the crime. [112]
Therefore, even with the current lack of domestic legislation on
the part of the US, it still has both the doctrine of incorporation
and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an
international
tribunal,
found
in
the
Rome
Statute
is not declaratory of customary international law.

The first element of customary international law, i.e.,


established, widespread, and consistent practice on the part of
States,[113] does not, under the premises, appear to be obtaining
as reflected in this simple reality: As of October 12, 2010, only
114[114] States have ratified the Rome Statute, subsequent to its
coming into force eight (8) years earlier, or on July 1, 2002. The
fact that 114 States out of a total of 194 [115] countries in the world,
or roughly 58.76%, have ratified the Rome Statute casts doubt on
whether or not the perceived principles contained in the Statute
have attained the status of customary law and should be deemed
as obligatory international law. The numbers even tend to argue
against the urgency of establishing international criminal courts
envisioned in the Rome Statute. Lest it be overlooked,
the Philippines, judging by the action or inaction of its top
officials, does not even feel bound by the Rome Statute. Res ipsa
loquitur. More than eight (8) years have elapsed since the
Philippine representative signed the Statute, but the treaty has
not been transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the
application of the concurring elements, thus:

Custom or customary international law means a general and


consistent practice of states followed by them from a sense of legal
obligation [opinio juris] x x x. This statement contains the two basic
elements of custom: the material factor, that is how the states behave,
and the psychological factor or subjective factor, that is, why they
behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual
behavior of states. This includes several elements: duration,
consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is


the consistency and the generality of the practice. x x x

xxxx

Once the existence of state practice has been


established, it becomes necessary to determine why states
behave the way they do. Do states behave the way they do because
they consider it obligatory to behave thus or do they do it only as a
matter of courtesy? Opinio juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international
rule. Without it, practice is not law.[116] (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let


alone prevalent practice, among the different countries in the
world that the prosecution of internationally recognized crimes of
genocide, etc. should
be
handled
by
a
particular
international criminal court.

Absent the widespread/consistent-practice-of-states factor,


the second or the psychological element must be deemed nonexistent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as
a matter of settled and consistent practice, in a certain
manner. This implicitly requires belief that the practice in question
is rendered obligatory by the existence of a rule of law requiring

it.[117] Like the first element, the second element has likewise not
been shown to be present.
Further, the Rome Statute itself rejects the concept of
universal jurisdiction over the crimes enumerated therein as
evidenced by it requiring State consent. [118]Even further, the Rome
Statute specifically and unequivocally requires that: This Statute
is subject to ratification, acceptance or approval by signatory
States.[119]These clearly negate the argument that such has
already attained customary status.
More importantly, an act of the executive branch with a
foreign government must be afforded great respect. The power to
enter into executive agreements has long been recognized to be
lodged with the President. As We held in Neri v. Senate
Committee on Accountability of Public Officers and Investigations,
[t]he power to enter into an executive agreement is in essence an
executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature
has traditionally been recognized in Philippine jurisprudence.
[120]
The rationale behind this principle is the inviolable doctrine of
separation of powers among the legislative, executive and judicial
branches of the government. Thus, absent any clear
contravention of the law, courts should exercise utmost caution in
declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged
RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be
effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and


prohibition is hereby DISMISSED for lack of merit. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.


Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

See dissenting opinion I join the dissent of J. Carpio


ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE


CASTRO
Associate Justice Associate Justice

No Part
ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO


Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.


Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA


Associate Justice Associate Justice

I concur in the result


MARIA LOURDES P. A. SERENO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby


certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer
of the opinion of the Court.

RENATO C. CORONA
Chief Justice

[1]

Rollo, pp. 241-265.

[2]

He is now the DFA Secretary.

[3]

Rollo, pp. 74-145.

[4]

ROME STATUTE, Art. 1.

[5]

Id., Art. 5.

[6]

ROME STATUTE, Article 125.

[7]

Rollo, pp. 68-69.

[8]

Id. at 72, Paper on the RP-US Non-Surrender Agreement.

[9]

Id. at 70.

[10]

[11]

Id. at 175.

Id. at 25-27.

[12]

Philconsa v. Gimenez, No. L-23326, December 18, 1965, 15 SCRA 479; Iloilo Palay & Corn Planters
Association, No. L-24022, March 3, 1965, 13 SCRA 377; Araneta v. Dinglasan, 84 Phil. 368 (1949).
[13]

David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.

[14]

Jumamil v. Caf, G.R. No. 144570, September 21, 2005, 470 SCRA 475; citing Integrated Bar of the
Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81.
[15]

Id.

[16]

Id.

[17]

Farias v. Executive Secretary, G.R. Nos. 147387 & 152161, December 10, 2003, 417 SCRA 503;
citing Baker v. Carr, 369 U.S. 186 (1962). See also Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337
SCRA 733.
[18]

Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R. Nos. 155001, 155547 & 155661, May
5, 2003, 402 SCRA 612.
[19]

Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005, 472 SCRA 515; Agan, Jr., supra note
18; Del Mar v. Philippine Amusement and Gaming Corporation, G.R. No. 138298, November 29, 2000, 346 SCRA
485; Tatad v. Garcia, G.R. No. 114222, April 6, 1995, 243 SCRA 436; Kilosbayan v. Guingona, Jr., G.R. No.
113375, May 5, 1994, 232 SCRA 110.

[22]

[26]

[20]

G.R. No. 160261, November 10, 2003, 415 SCRA 45.

[21]

Id. at 136-137.

Supra note 12.


[23]

Supra note 19.

[24]

G.R. No. 138587, October 10, 2000, 342 SCRA 2000.

[25]

G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49.

Cruz, PHILIPPINE POLITICAL LAW 55 (1995).


[27]

Harris, CASES AND MATERIALS ON INTERNATIONAL LAW 801 (2004).

[28]

Official Website of the UN <http://untreaty.un.org/English/guide.asp.>; cited in Abaya v. Ebdane, G.R.


No. 167919, February 14, 2007, 515 SCRA 720.
[29]

Abaya v. Ebdane, supra.

[30]

Id.; citing The Constitutionality of Trade Agreement Acts by Francis Sayre.

[31]

Cited in Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 (1961).

[32]

Executive Order No. 459, dated November 25, 1997, contains a similar definition.

[33]

B.A. Boczek, INTERNATIONAL LAW: A DICTIONARY 346 (2005).

[34]

Bayan v. Zamora, supra note 24; citing Richard Erickson, The Making of Executive Agreements by the US
Department of Defense, 13 Boston U. Intl. L. J. 58 (1955); Randall, The Treaty Power, 51 Ohio St. L.J., p. 4; see
alsoRestatement (Third) of Foreign Relations Law 301 (1987), which states that [t]he terminology used for
international agreements is varied. Among the terms used are: treaty, convention, agreement, protocol, covenant,
charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement,
memorandum of understanding, and modus vivendi. Whatever their designation, all agreements have the same legal
status, except as their provisions or the circumstances of their conclusion indicate otherwise. (Emphasis supplied.)

[35]

Id. at 489; citing 5 Hackworth, DIGEST OF INTERNATIONAL LAW 395; cited in USAFE Veterans
Association Inc. v. Treasurer of the Philippines, 105 Phil. 1030, 1037 (1959).
[36]

Reid v. Covert, 354 U.S. 77 S. Ct.1230.

[37]

In the US constitutional system, it is the legal force of treaties and executive agreements on the domestic plane.
[38]

Henkin, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 224 (2nd ed., 1996).

[39]

Prof. Edwin Borchard, Treaties and Executive Agreements Reply, Yale Law Journal, June 1945; cited in
Justice Antonio T. Carpios Dissent in Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009,
578 SCRA 438.
[40]

No. L-14279, October 31, 1961, 3 SCRA 351, 356.

[41]

No. L-30650, July 31, 1970, 34 SCRA 166.

[42]

Latin for agreements must be kept, BLACKS LAW DICTIONARY (8th ed., 2004). The principle
of pacta sunt servanda, in its most common sense, refers to private contracts, stressing that
these pacts and clauses are the law between the parties, and implying that the non-fulfilment of
respective obligations is a breach of the pact.
With regard to international agreements, Art. 26 of the Vienna Convention on the Law
of Treaties (signed on May 23, 1969 and entered into force on January 27, 1980) states
that every treaty in force is binding upon the parties to it and must be performed by them
in good faith. Pacta sunt servanda is based on good faith. This entitles states to require
that obligations be respected and to rely upon the obligations being respected. This goodfaith basis of treaties implies that a party to the treaty cannot invoke provisions of
its domestic law as justification for a failure to perform. The only limit to pacta sunt
servanda is jus cogens (Latin for compelling law), the peremptory norm of general
international law.
[43]

Oona A. Hathaway, Presidential Power Over International Law: Restoring the Balance, 119 YLJ 140,

152 (2009).
[44]

Rotunda, Nowak and Young, TREATISE ON CONSTITUTIONAL LAW 394; cited in then Chief Justice Punos
dissent in Bayan v. Zamora, supra.
[45]

Nicolas, supra note 39.

[46]

Sec. 25. After the expiration in 1991 of the [RP-US Military Bases Agreement] foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate, and when
Congress so requires, ratified x x x in a national referendum held for that purpose, and recognized as a treaty by the
contracting state.
[47]

Supra note 39.

[48]

Supra note 41.

[49]

Supra note 31.

[50]

Article 27

Irrelevance of official capacity


1. This Statue shall apply equally to all persons without any distinction based on official capacity. In particular,
official capacity as a Head of State or Government, a member of a Government or parliament, an elected
representative or a government official shall in no case exempt a person from criminal responsibility under this
Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under
national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
[51]

Article 86

General Obligation to Cooperate


States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its
investigation and prosecution of crimes within the jurisdiction of the Court.
[52]

Article 89

Surrender of persons to the Court


1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting
the request outlined in article 91, to any State on the territory of which that person may be found and shall request
the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the
provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle
of neb is in idem as provided in article 20, the requested State shall immediately consult with the Court to determine
if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with
the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of
the request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory
of a person being surrendered to the Court by another State, except where transit through that State would impede or
delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall
contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c)

A person being transported shall be detained in custody during the period of transit;

(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory
of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for
transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported
until the request for transit is received and the transit is effected, provided that detention for purposes of this
subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received
within that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different
from that for which surrender to the Court is sought, the requested State, after making its decision to grant the
request, shall consult with the Court.
[53]

Article 90

Competing requests
1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also
receives a request from any other State for the extradition of the same person for the same conduct which forms the
basis of the crime for which the Court seeks the persons surrender, notify the Court and the requesting State of that
fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is
sought is admissible and that determination takes into account the investigation or prosecution conducted by the
requesting State in respect of its request for extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the requested States notification
under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion,
pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from
the requesting State but shall not extradite the person until the Court has determined that the case is
inadmissible. The Courts determination shall be made on an expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the
Court, if the Court has determined that the case is inadmissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may,
at its discretion, proceed to deal with the request for extradition from the requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to
extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to
surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested
State shall consider all the relevant factors, including but not limited to:
(a) The respective dates of the requests;

(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory
and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting State.
7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request
from any State for the extradition of the same person for conduct other than that which constitutes the crime for
which the Court seeks the persons surrender:
(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the
requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to extradite the person to the
requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting
State.In making its decision, the requested State shall consider all the relevant factors, including but not limited to
those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in
question.
8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and
subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.
[54]

Tenth preambular paragraph of the ICC Statute.

[55]

1. Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is
inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is
unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to
prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State
genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a
trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
[56]

Latin for not twice for the same, a legal principle that means no legal action can be instituted twice for
the same cause of action. In gist, it is a legal concept substantially the same as or synonymous to double jeopardy.
[57]

A state is obliged to refrain from acts that would defeat the object and purpose of a treaty when: (a) it
has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its
consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is
not unduly delayed.
[58]

VIENNA CONVENTION ON THE LAW OF TREATIES, Art. 18.

[59]

Supra note 39.

[60]

CONSTITUTION, Art. II, Sec. 2.

[61]

Taada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.

[62]

Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948); cited in Agpalo, PUBLIC INTERNATIONAL
LAW 222-223 (2006).
[63]

Rollo, pp. 53-54.

[64]

Under VIENNA CONVENTION ON THE LAW OF TREATIES, Art. 18, a State has the obligations not
to defeat the object and purpose of a treaty prior to its entry into force when (a) it has signed the treaty or has
exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made
its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
[65]

Bayan v. Zamora, supra.

[66]

Id.; citing Commissioner of Customs, supra.

[67]

G.R. No. 158088, July 6, 2005, 462 SCRA 622.

[68]

Id. at 637-638; citing Cruz, INTERNATIONAL LAW 174 (1998).

[69]

Signature, ratification, acceptance, approval or accession.

1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and
Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature
in Romeat the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain
open for signature in New York, at United Nations Headquarters, until 31 December 2000.
2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of
ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.
3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the
Secretary-General of the United Nations.
[70]

RA 9851, Secs. 4-6.

[71]

Id., Secs. 7-12.

[72]

Id., Secs. 17-18.

[73]

Republic Planters Bank v. Agana, Sr., G.R. No. 51765, May 3, 1997, 269 SCRA 1, 12.

[74]

Supra note 39.

[75]

456 U.S. 25 (1982).

[76]

Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009, 578 SCRA 438, 467.

[77]

G.R. No. 178830, July 14, 2008, 558 SCRA 329.

[78]

Id. at 376. (Emphasis supplied.)

[79]

Par. 1, Art. 2, RP-US Extradition Treaty, Senate Resolution No. 11, November 27, 1995 (emphasis

supplied).
[80]

18 U.S.C.A. 2441.

[81]

18 U.S.C.A. 1091.

[82]

Malcolm Shaw, INTERNATIONAL LAW 112 (2008).

[83]

Victoria K. Holt and Elisabeth W. Dallas, On Trial: The US Military and the International Criminal
Court, The Henry L. Stimson Center, Report No. 55, March 2006, p. 92; available at
<http://www.stimson.org/images/uploads/research-pdfs/US_Military_and_the_ICC_FINAL_website.pdf>
last
visited January 27, 2011. We quote Holt and Dallas profiles from the report:
Victoria K. Holt is a senior associate at the Henry L. Stimson Center, where she co-directs the Future of
Peace Operations program. She has co-authored a study of peacekeeping reforms at the United Nations, analyzing
the implementation of the 2000 Brahimi Report recommendations, and recently completed reports on African
capacity for peace operations and the protection of civilians by military forces. Ms. Holt joined
the Stimson Center in 2001, bringing policy and political expertise on UN and peacekeeping issues from her work at
the US Department of State, in the NGO community and on Capitol Hill. She served as Senior Policy Advisor at the
US State Department (Legislative Affairs), where she worked with Congress on issues involving UN peacekeeping
and international organizations. Prior to joining State, she was Executive Director of the Emergency Coalition for
US Financial Support of the United Nations, and also directed the Project on Peacekeeping and the UN at the Center
for Arms Control and Nonproliferation in Washington, DC. From 1987 to 1994, Ms. Holt worked as a senior
Congressional staffer, focusing on defense and foreign policy issues for the House Armed Services Committee. She
served as Legislative Director for Rep. Thomas H. Andrews and as Senior Legislative Assistant to Rep. George J.
Hochbrueckner. Ms. Holt is a graduate of the Naval War College and holds a B.A. with honors
from Wesleyan University.
Elisabeth W. Dallas is a research associate with the Henry L. Stimson Centers Future of Peace Operations
program and is focusing her work on the restoration of the rule of law in post-conflict settings. In particular, she is
analyzing what legal mechanisms are required to allow for international criminal jurisdiction within UN peace
operations. Prior to working at the Stimson Center, Ms. Dallas was a Senior Fellow with the Public International
Law & Policy Group in Washington, DC, where she served as a political and legal advisor for parties during
international peace negotiations taking place in the Middle East, the Balkans and South Asia. Ms. Dallas earned an
MA fromTufts Universitys Fletcher School of Law & Diplomacy with a concentration in International Negotiation
& Conflict Resolution and Public International Law, as well as a Certificate in Human Security and Rule of Law.
She earned her BA from Haverford College. (Emphasis supplied.)
[84]

( i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;


(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a
hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair
and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
[85]

(d) Common Article 3 violations.

(1) Prohibited conduct In subsection (c)(3), the term grave breach of common Article 3 means any conduct
(such conduct constituting a grave breach of common Article 3 of the international conventions done
at GenevaAugust 12, 1949), as follows:
(A) Torture. The act of a person who commits, or conspires or attempts to commit, an act specifically
intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to
lawful sanctions) upon another person within his custody or physical control for the purpose of
obtaining information or a confession, punishment, intimidation, coercion, or any reason based on
discrimination of any kind.
(B) Cruel or inhuman treatment. The act of a person who commits, or conspires or attempts to commit, an
act intended to inflict severe or serious physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanction), including serious physical abuse, upon another within his
custody or control.
(C) Performing biological experiments. The act of a person who subjects, or conspires or attempts to
subject, one or more person within his custody or physical control to biological experiments without a
legitimate medical or dental purpose and in so doing endangers the body or health of such person or
persons.
(D) Murder. The act of a person who intentionally or unintentionally in the course of committing any other
offense under this subsection, one or more persons taking no active part in the hostilities, including
those placed out of combat by sickness, wounds, detention, or any other cause.
(E) Mutilation or maiming. The act of a person who intentionally injures, or conspires or attempts to
injure, or injures whether intentionally or unintentionally in the course of committing any other offense
under this subsection, one or more persons taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or
persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body,
without any legitimate medical or dental purpose.
(F) Intentionally causing serious bodily injury. The act of a person who intentionally causes, or conspires
or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in
violation of the law of war.
(G) Rape. The act of a person who forcibly or with coercion or threat of force wrongfully invades, or
conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or
genital opening of the victim with any part of the body of the accused, or with any foreign object.

(H) Sexual assault or abuse. The act of a person who forcibly or with coercion or threat of force engages,
or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires
or attempts to cause, one or more persons to engage in sexual contact.
(I)

Taking hostages. The act of a person who, having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any
nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or
implicit condition for the safety or release of such person or persons.

(2) Definitions. In the case of an offense under subsection (a) by reason of subsection (c)(3)
(A) the term severe mental pain or suffering shall be applied for purposes of paragraphs (1)(A) and (1)(B)
in accordance with the meaning given that term in section 2340 (2) of this title;
(B) the term serious bodily injury shall be applied for purposes of paragraph (1)(F) in accordance with the
meaning given that term in section 113 (b)(2) of this title;
(C) the term sexual contact shall be applied for purposes of paragraph (1)(G) in accordance with the
meaning given that term in section 2246 (3) of this title;
(D) the term serious physical pain or suffering shall be applied for purposes of paragraph (1)(B) as
meaning bodily injury that involves
(i)

a substantial risk of death;

(ii)

extreme physical pain;

(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) a significant loss or impairment of the function of a bodily member, organ, or mental faculty; and
(E) the term serious mental pain or suffering shall be applied for purposes of paragraph (1)(B) in
accordance with the meaning given the term severe mental pain or suffering (as defined in section
2340(2) of this title), except that
(i)

the term serious shall replace the term sever where it appears; and

(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006,
the term serious and non-transitory mental harm (which need not be prolonged) shall replace the
term prolonged mental harm where it appears.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack. The
intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the
applicability of those subparagraphs to an offense under subsection (A) by reasons of subsection (C)(3)
with respect to
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.

(4) Inapplicability of taking hostages to prisoner exchange. Paragraph (1)(I) does not apply to an offense under
subsection (A) by reason of subsection (C)(3) in the case of a prisoner exchange during wartime.
(5) Definition of grave breaches. The definitions in this subsection are intended only to define the grave
breaches of common Article 3 and not the full scope of United States obligations under that Article.
[86]

18 U.S.C.A. 2441.

[87]

Victoria K. Holt and Elisabeth W. Dallas, supra note 83, at 7.

[88]

Id. at 35.

[89]

175 U.S. 677, 20 S.Ct. 290 (1900).

[90]

Id. at 700; citing Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup.
Ct. Rep. 139.
[91]

14 U.S. 415, 1816 WL 1770 (U.S.Mass.) (1816).

[92]

11 U.S. (7 Cranch) 32 (1812).

[93]

Jordan J. Paust, CUSTOMARY INTERNATIONAL LAW AND HUMAN RIGHTS TREATIES ARE
LAW OF THE UNITED STATES, 20 MIJIL 301, 309 (1999).
[94]

11 U.S. (7 Cranch) 32, 32 (1812).

[95]

x x x [C]ustomary international law is part of the law of the United States to the limited extent that,
where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations. U.S. v. Yousef, 327 F.3d 56, 92 (2003).
[96]

317 U.S. 1 (1942).

[97]

Id. at 27-28; citing Talbot v. Jansen, 3 Dall. 133, 153, 159, 161, 1 L.Ed. 540; Talbot v. Seeman, 1 Cranch
1, 40, 41, 2 L.Ed. 15; Maley v. Shattuck, 3 Cranch 458, 488, 2 L.Ed. 498; Fitzsimmons v. Newport Ins. Co., 4 Cranch
185, 199, 2 L.Ed. 591; The Rapid, 8 Cranch 155, 159-164, 3 L.Ed. 520; The St. Lawrence, 9 Cranch 120, 122, 3
L.Ed. 676; Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191, 197, 198, 3 L.Ed. 701; The Anne, 3 Wheat. 435, 447,
448, 4 L.Ed. 428; United States v. Reading, 18 How. 1, 10, 15 L.Ed. 291; Prize Cases (The Amy Warwick), 2 Black
635, 666, 667, 687, 17 L.Ed. 459; The Venice, 2 Wall. 258, 274, 17 L.Ed. 866; The William Bagaley, 5 Wall. 377, 18
L.Ed. 583; Miller v. United States, 11 Wall. 268, 20 L.Ed. 135; Coleman v. Tennessee, 97 U.S. 509, 517, 24 L.Ed.
1118; United States v. Pacific R.R., 120 U.S. 227, 233, 7 S.Ct. 490, 492, 30 L.Ed. 634; Juragua Iron Co. v.United
States, 212 U.S. 297, 29 S.Ct. 385, 53 L.Ed. 520.
[98]

Id. at 29-30.

[99]

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Merits, I.C.J. judgment, February 26, 2007, 161; M. Cherif
Bassiouni,INTERNATIONAL CRIMES: JUS COGENS AND OBLIGATIO ERGA OMNES, 59-AUT Law &
Contemp. Probs. 63, 68.
[100]

I.C.J. Statute, art. 38, 1 (b) international custom, as evidence of a general practice accepted as law.

[101]

North Sea Continental Shelf, 1969 I.C.J. 77; cited in Patrick Simon S. Perillo, Transporting the Concept
of Creeping Expropriation from De Lege Ferenda to De Lege Lata: Concretizing the Nebulous Under International
Law, 53 ATENEO L.J. 434, 509-510 (2008).
[102]

North Sea Continental Shelf, 1969 I.C.J. 77; D.J. Harris, CASES AND MATERIALS ON
INTERNATIONAL LAW, 22 (2004).
[103]

North Sea Continental Shelf, 1969 I.C.J. at 175 (Tanaka, J., dissenting).

[104]

Fisheries Jurisdiction (U.K. v. Ice) (Merits), 1974 I.C.J. 3, 89-90 (de Castro, J., separate opinion).

[105]

North Sea Continental Shelf, 1969 I.C.J. 77.

[106]

M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-AUT Law &
Contemp. Probs. 63, 67.
[107]

Id.

[108]

Id.

[109]

Carlee M. Hobbs, THE CONFLICT BETWEEN THE ALIEN TORT STATUTE LITIGATION AND
FOREIGN AMNESTY LAWS, 43 Vand. J. Transnatl L. 505, 521 (2009-2010); citing Jeffrey L. Dunoff, et
al.,INTERNATIONAL LAW: NORMS, ACTORS PROCESS 58-59 (2d ed., 2006).
[110]

Id.; citing Jeffrey L. Dunoff et al., INTERNATIONAL LAW: NORMS, ACTORS PROCESS 380 (2d

ed., 2006).
[111]

Id.

[112]

Id.

[113]

Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034, October
9, 2007, 535 SCRA 265.
[114]

See <http://www.icc-cpi.int/Menus/ASP/states+parties/> (last visited January 26, 2011).

[115]

<http://www.nationsonline.org oneworld /states.org> (last visited October 18, 2010). The list does not
include dependent territories.
[116]

Joaquin G. Bernas, S.J., AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 10-13 (2002);


cited in Pharmaceutical and Health Care Association of the Philippines v. Duque III, supra note 113, at 292.
[117]

Pharmaceutical and Health Care Association of the Philippines, supra note 113, at 290-291; citation

[118]

Article 12. Preconditions to the exercise of jurisdiction.

omitted.

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect
to the crimes referred to in article 5.

2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of
the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with
paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on
board a vessel or aircraft, the State of registration of that vessel or aircraft.
(b) The State of which the person accused of the crime is a national.
[119]

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Art. 25, par. 2.

[120]

G.R. No. 180643, September 4, 2003, 564 SCRA 152, 197-198.

Republic of the Philippines


Supreme Court
Manila
EN BANC
ISABELITA C. VINUYA, VICTORIA
C. DELA PEA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO,
ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A.
SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEA,
EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA
ALONZO, RUFINA P. MALLARI,
ROSARIO M. ALARCON, RUFINA C.
GULAPA, ZOILA B. MANALUS,
CORAZON C. CALMA, MARTA A.
GULAPA, TEODORA M. HERNANDEZ,
FERMIN B. DELA PEA, MARIA DELA

G.R. No. 162230

Present:
PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,

PAZ B. CULALA, ESPERANZA


MANAPOL, JUANITA M. BRIONES,
VERGINIA M. GUEVARRA, MAXIMA
ANGULO, EMILIA SANGIL, TEOFILA
R. PUNZALAN, JANUARIA G. GARCIA,
PERLA B. BALINGIT, BELEN A.
CULALA, PILAR Q. GALANG,
ROSARIO C. BUCO, GAUDENCIA C.
DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C.
GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON
M. SUBA, EMERINCIANA A. VINUYA,
LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA
LIWAG, ESTER C. BALINGIT, JOVITA
A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA
S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA
C. GULAPA, SEFERINA S. TURLA,
MAXIMA B. TURLA, LEONICIA G.
GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the
Malaya Lolas Organization,
Petitioners,
- versus THE HONORABLE EXECUTIVE
SECRETARY ALBERTO G.
ROMULO, THE HONORABLE
SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGOALBERT, THE HONORABLE
SECRETARY OF JUSTICE

BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

Promulgated:
April 28, 2010

MERCEDITAS N. GUTIERREZ,
and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO,
Respondents.
x--------------------------------------------------------x

DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted
by plaintiffs in these actions, exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And while full compensation for
plaintiffs' hardships, in the purely economic sense, has been denied these former
prisoners and countless other survivors of the war, the immeasurable bounty of life for
themselves and their posterity in a free society and in a more peaceful world services the
debt.[1]

There is a broad range of vitally important areas that must be regularly decided by the
Executive Department without either challenge or interference by the Judiciary. One such
area involves the delicate arena of foreign relations. It would be strange indeed if the
courts and the executive spoke with different voices in the realm of foreign policy.
Precisely because of the nature of the questions presented, and the lapse of more than 60
years since the conduct complained of, we make no attempt to lay down general
guidelines covering other situations not involved here, and confine the opinion only to the
very questions necessary to reach a decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with
an application for the issuance of a writ of preliminary mandatory injunction against the
Office of the Executive Secretary, the Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor
General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, nonprofit organization registered with the Securities and Exchange Commission,
established for the purpose of providing aid to the victims of rape by Japanese
military forces in the Philippines during the Second World War.
Petitioners narrate that during the Second World War, the Japanese army attacked
villages and systematically raped the women as part of the destruction of the village.
Their communities were bombed, houses were looted and burned, and civilians were
publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the
women and held them in houses or cells, where they were repeatedly raped, beaten, and
abused by Japanese soldiers. As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured physical injuries, pain and
disability, and mental and emotional suffering.[2]
Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the comfort
women stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by Japans compliance
with the Peace Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and war
crimes committed against them; and (b) compel the respondents to espouse their claims
for official apology and other forms of reparations against Japan before the International
Court of Justice (ICJ) and other international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the comfort
women system established by Japan, and the brutal rape and enslavement of petitioners
constituted a crime against humanity,[3] sexual slavery,[4] and torture.[5] They allege that

the prohibition against these international crimes is jus cogens norms from which no
derogation is possible; as such, in waiving the claims of Filipina comfort women and
failing to espouse their complaints against Japan, the Philippine government is in breach
of its legal obligation not to afford impunity for crimes against humanity. Finally,
petitioners assert that the Philippine governments acceptance of the apologies made by
Japan as well as funds from the Asian Womens Fund (AWF) were contrary to
international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the
war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.[6]
Article 14 of the Treaty of Peace[7] provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied Powers for the damage
and suffering caused by it during the war. Nevertheless it is also recognized
that the resources of Japan are not presently sufficient, if it is to maintain a
viable economy, to make complete reparation for all such damage and
suffering and at the present time meet its other obligations.
b)

Except as otherwise provided in the present Treaty, the Allied Powers


waive all reparations claims of the Allied Powers, other claims of the Allied
Powers and their nationals arising out of any actions taken by Japan and its
nationals in the course of the prosecution of the war, and claims of the Allied
Powers for direct military costs of occupation.

In addition, respondents argue that the apologies made by Japan[8] have been
satisfactory, and that Japan had addressed the individual claims of the women through
the atonement money paid by the Asian Womens Fund.
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In
December 1937, Japanese military forces captured the city of Nanking in China and
began a barbaric campaign of terror known as the Rape of Nanking, which included the

rapes and murders of an estimated 20,000 to 80,000 Chinese women, including young
girls, pregnant mothers, and elderly women.[9]
In reaction to international outcry over the incident, the Japanese government
sought ways to end international condemnation[10] by establishing the comfort women
system. Under this system, the military could simultaneously appease soldiers' sexual
appetites and contain soldiers' activities within a regulated environment. [11] Comfort
stations would also prevent the spread of venereal disease among soldiers and discourage
soldiers from raping inhabitants of occupied territories.[12]
Daily life as a comfort woman was unmitigated misery.[13] The military forced
victims into barracks-style stations divided into tiny cubicles where they were forced to
live, sleep, and have sex with as many 30 soldiers per day.[14] The 30 minutes allotted for
sexual relations with each soldier were 30-minute increments of unimaginable horror for
the women.[15] Disease was rampant.[16] Military doctors regularly examined the women,
but these checks were carried out to prevent the spread of venereal diseases; little notice
was taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones
inflicted on the women by soldiers.
Fewer than 30% of the women survived the war.[17] Their agony continued in having to
suffer with the residual physical, psychological, and emotional scars from their former
lives. Some returned home and were ostracized by their families. Some committed
suicide. Others, out of shame, never returned home.[18]
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations (UN), resolutions by
various nations, and the Womens International Criminal Tribunal. The Japanese
government, in turn, responded through a series of public apologies and the creation of
the AWF.[19]
Lawsuits

In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit
in Japan by former comfort women against the Japanese government. The Tokyo District
Court however dismissed their case.[20] Other suits followed,[21] but the Japanese
government has, thus far, successfully caused the dismissal of every case.[22]
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims
of the comfort women system brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action lawsuit in the US District
Court for the District of Columbia[23] "seeking money damages for [allegedly] having
been subjected to sexual slavery and torture before and during World War II," in violation
of "both positive and customary international law." The case was filed pursuant to the
Alien Tort Claims Act (ATCA),[24] which allowed the plaintiffs to sue the Japanese
government in a US federal district court.[25] On October 4, 2001, the district court
dismissed the lawsuit due to lack of jurisdiction over Japan, stating that [t]here is no
question that this court is not the appropriate forum in which plaintiffs may seek to
reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not enjoy
sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed.
The District of Columbia Court of Appeals affirmed the lower court's dismissal of
the case.[26] On appeal, the US Supreme Court granted the womens petition for writ of
certiorari, vacated the judgment of the District of Columbia Court of Appeals, and
remanded the case.[27] On remand, the Court of Appeals affirmed its prior decision, noting
that much as we may feel for the plight of the appellants, the courts of the US simply are
not authorized to hear their case.[28] The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery
by Japan (KCWS), submitted a petition to the UN Human Rights Commission
(UNHRC), asking for assistance in investigating crimes committed by Japan against
Korean women and seeking reparations for former comfort women. [29] The UNHRC
placed the issue on its agenda and appointed Radhika Coomaraswamy as the issue's
special investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's
responsibility in forcing Korean women to act as sex slaves for the imperial army, and
made the following recommendations:

A. At the national level


137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial
Army during the Second World War was a violation of its obligations under
international law and accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese military sexual slavery according
to principles outlined by the Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities on the right to
restitution, compensation and rehabilitation for victims of grave violations of
human rights and fundamental freedoms. A special administrative tribunal for
this purpose should be set up with a limited time-frame since many of the victims
are of a very advanced age;
(c) Make a full disclosure of documents and materials in its possession with regard to
comfort stations and other related activities of the Japanese Imperial Army during
the Second World War;
(d) Make a public apology in writing to individual women who have come forward and
can be substantiated as women victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to reflect historical
realities;
(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and
institutionalization of comfort stations during the Second World War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of


Discrimination and Protection of Minorities, also presented a report to the SubCommittee on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape,
Sexual Slavery and Slavery-like Practices During Armed Conflict. The report included an
appendix entitled An Analysis of the Legal Liability of the Government of Japan for
'Comfort Women Stations' established during the Second World War,[30] which contained
the following findings:
68. The present report concludes that the Japanese Government remains liable for grave
violations of human rights and humanitarian law, violations that amount in their totality
to crimes against humanity. The Japanese Governments arguments to the contrary,
including arguments that seek to attack the underlying humanitarian law prohibition of
enslavement and rape, remain as unpersuasive today as they were when they were first

raised before the Nuremberg war crimes tribunal more than 50 years ago. In addition, the
Japanese Governments argument that Japan has already settled all claims from the
Second World War through peace treaties and reparations agreements following the war
remains equally unpersuasive. This is due, in large part, to the failure until very recently
of the Japanese Government to admit the extent of the Japanese militarys direct
involvement in the establishment and maintenance of these rape centres. The Japanese
Governments silence on this point during the period in which peace and reparations
agreements between Japan and other Asian Governments were being negotiated
following the end of the war must, as a matter of law and justice, preclude Japan from
relying today on these peace treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of
hostilities is a testament to the degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a sexual nature committed on a
massive scale during the Second World War has added to the level of impunity with
which similar crimes are committed today. The Government of Japan has taken some
steps to apologize and atone for the rape and enslavement of over 200,000 women and
girls who were brutalized in comfort stations during the Second World War. However,
anything less than full and unqualified acceptance by the Government of Japan of legal
liability and the consequences that flow from such liability is wholly inadequate. It must
now fall to the Government of Japan to take the necessary final steps to provide adequate
redress.

The UN, since then, has not taken any official action directing Japan to provide the
reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a people's tribunal
established by a number of Asian women and human rights organizations, supported by
an international coalition of non-governmental organizations.[31] First proposed in 1998,
the WIWCT convened in Tokyo in 2000 in order to adjudicate Japan's military sexual
violence, in particular the enslavement of comfort women, to bring those responsible for
it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against
women.
After examining the evidence for more than a year, the tribunal issued its verdict
on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty

of crimes against humanity for the rape and sexual slavery of women. [32] It bears
stressing, however, that although the tribunal included prosecutors, witnesses, and judges,
its judgment was not legally binding since the tribunal itself was organized by private
citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with six
co-sponsor representatives, introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former comfort women. The
Resolution was formally passed on July 30, 2007,[33] and made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of Japan (1) should
formally acknowledge, apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual
slavery, known to the world as comfort women, during its colonial and wartime
occupation of Asia and the Pacific Islands from the 1930s through the duration of World
War II; (2) would help to resolve recurring questions about the sincerity and status of
prior statements if the Prime Minister of Japan were to make such an apology as a public
statement in his official capacity; (3) should clearly and publicly refute any claims that
the sexual enslavement and trafficking of the comfort women for the Japanese Imperial
Army never occurred; and (4) should educate current and future generations about this
horrible crime while following the recommendations of the international community with
respect to the comfort women.[34]

In December 2007, the European Parliament, the governing body of the European
Union, drafted a resolution similar to House Resolution 121. [35] Entitled, Justice for
Comfort Women, the resolution demanded: (1) a formal acknowledgment of
responsibility by the Japanese government; (2) a removal of the legal obstacles
preventing compensation; and (3) unabridged education of the past. The resolution also
stressed the urgency with which Japan should act on these issues, stating: the right of
individuals to claim reparations against the government should be expressly recognized
in national law, and cases for reparations for the survivors of sexual slavery, as a crime
under international law, should be prioritized, taking into account the age of the survivors.
The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against Japan. Canada's resolution demands the Japanese government to issue
a formal apology, to admit that its Imperial Military coerced or forced hundreds of

thousands of women into sexual slavery, and to restore references in Japanese textbooks
to its war crimes.[36] The Dutch parliament's resolution calls for the Japanese government
to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdoms Parliament also
produced a report in November, 2008 entitled, "Global Security: Japan and Korea"
which concluded that Japan should acknowledge the pain caused by the issue of comfort
women in order to ensure cooperation between Japan and Korea.
Statements
of
Remorse
made
by
representatives of the Japanese government
Various officials of the Government of Japan have issued the following public
statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of wartime "comfort
women" since December 1991. I wish to announce the findings as a result of that study.
As a result of the study which indicates that comfort stations were operated in extensive
areas for long periods, it is apparent that there existed a great number of comfort women.
Comfort stations were operated in response to the request of the military authorities of the
day. The then Japanese military was, directly or indirectly, involved in the establishment
and management of the comfort stations and the transfer of comfort women. The
recruitment of the comfort women was conducted mainly by private recruiters who acted
in response to the request of the military. The Government study has revealed that in
many cases they were recruited against their own will, through coaxing coercion, etc.,
and that, at times, administrative/military personnel directly took part in the recruitments.
They lived in misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the war areas,
excluding those from Japan, those from the Korean Peninsula accounted for a large part.
The Korean Peninsulawas under Japanese rule in those days, and their recruitment,
transfer, control, etc., were conducted generally against their will, through coaxing,
coercion, etc.
Undeniably, this was an act, with the involvement of the military authorities of the day,
that severely injured the honor and dignity of many women. The Government of Japan
would like to take this opportunity once again to extend its sincere apologies and remorse

to all those, irrespective of place of origin, who suffered immeasurable pain and incurable
physical and psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to consider seriously,
while listening to the views of learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described above instead of evading them,
and take them to heart as lessons of history. We hereby reiterated our firm determination
never to repeat the same mistake by forever engraving such issues in our memories
through the study and teaching of history.
As actions have been brought to court in Japan and interests have been shown in this
issue outside Japan, the Government of Japan shall continue to pay full attention to this
matter, including private researched related thereto.

b)

Prime Minister Tomiichi Murayamas Statement in 1994

On the issue of wartime comfort women, which seriously stained the honor and dignity
of many women, I would like to take this opportunity once again to express my profound
and sincere remorse and apologies

c) Letters from the Prime Minister of Japan to Individual Comfort Women


The issue of comfort women, with the involvement of the Japanese military authorities at
that time, was a grave affront to the honor and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse
to all the women who endured immeasurable and painful experiences and suffered
incurable physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral responsibilities, with feelings of
apology and remorse, should face up squarely to its past history and accurately convey it
to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005


Solemnly reflecting upon the many instances of colonial rule and acts of aggression that
occurred in modern world history, and recognizing that Japan carried out such acts in the
past and inflicted suffering on the people of other countries, especially in Asia, the
Members of this House hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)

e) Various Public Statements by Japanese Prime Minister Shinzo Abe


I have talked about this matter in the Diet sessions last year, and recently as well, and to
the press. I have been consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing sincerely to those who suffered
immeasurable pain and incurable psychological wounds as comfort women. Former
Prime Ministers, including Prime Ministers Koizumi and Hashimoto, have issued letters
to the comfort women. I would like to be clear that I carry the same feeling. This has not
changed even slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by
NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated
in the statement by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime
Minister Abe at the Budget Committee, the House of Councilors, the Diet
of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who suffered hardships, and I
have expressed my apologies for the extremely agonizing circumstances into which they
were placed. (Excerpt from Telephone Conference by Prime Minister Abe to President
George W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people who were taken
as wartime comfort women. As a human being, I would like to express my sympathies,
and also as prime minister of Japan I need to apologize to them. My administration has
been saying all along that we continue to stand by the Kono Statement. We feel
responsible for having forced these women to go through that hardship and pain as
comfort women under the circumstances at the time. (Excerpt from an interview article
"A Conversation with Shinzo Abe" by the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to
all those who suffered extreme hardships as comfort women; and I expressed my
apologies for the fact that they were forced to endure such extreme and harsh conditions.
Human rights are violated in many parts of the world during the 20th Century; therefore
we must work to make the 21st Century a wonderful century in which no human rights
are violated. And the Government of Japan and I wish to make significant contributions
to that end. (Excerpt from Prime Minister Abe's remarks at the Joint Press Availability
after the summit meeting at Camp David between Prime Minister Abe and President
Bush, April 27, 2007).

The Asian Women's Fund


Established by the Japanese government in 1995, the AWF represented the
government's concrete attempt to address its moral responsibility by offering monetary

compensation to victims of the comfort women system.[37] The purpose of the AWF was
to show atonement of the Japanese people through expressions of apology and remorse
to the former wartime comfort women, to restore their honor, and to demonstrate Japans
strong respect for women.[38]
The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying 2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying 2.5-3 million ($25,000$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister
to each woman.Funding for the program came from the Japanese government and private
donations from the Japanese people. As of March 2006, the AWF provided 700 million
(approximately $7 million) for these programs in South Korea, Taiwan, and
the Philippines; 380 million (approximately $3.8 million) in Indonesia; and 242 million
(approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort
women.Over the next five years, these were implemented by the Department of Social
Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners claims for
official apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the
Executive Department has the exclusive
prerogative to determine whether to espouse
petitioners claims against Japan.
Baker v. Carr[39] remains the starting point for analysis under the political question
doctrine. There the US Supreme Court explained that:

x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it,
or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of government;
or an unusual need for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by various
departments on question.

In Taada v. Cuenco,[40] we held that political questions refer "to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon
the wisdom, notlegality of a particular measure."
Certain types of cases often have been found to present political questions. [41] One such
category involves questions of foreign relations. It is well-established that "[t]he conduct
of the foreign relations of our government is committed by the Constitution to the
executive and legislative--'the political'--departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to
judicial inquiry or decision."[42] The US Supreme Court has further cautioned that
decisions relating to foreign policy
are delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they advance
or imperil. They are decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility.[43]

To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements.[44] However, the question whether the Philippine government should espouse
claims of its nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not to the courts but
to the political branches. In this case, the Executive Department has already decided that
it is to the best interest of the country to waive all claims of its nationals for reparations

against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held
that [t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations.
It is quite apparent that if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and success for our
aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential sources of information. He
has his agents in the form of diplomatic, consular and other officials. x x x

This ruling has been incorporated in our jurisprudence through Bayan v.


Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching principle
was, perhaps, best articulated in (now Chief) Justice Punos dissent in Secretary of Justice
v. Lantion:[48]
x x x The conduct of foreign relations is full of complexities and consequences,
sometimes with life and death significance to the nation especially in times of war. It can
only be entrusted to that department of government which can act on the basis of the best
available information and can decide with decisiveness. x x x It is also the President who
possesses the most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a plethora
of other problems with equally undesirable consequences.

The Executive Department has determined that taking up petitioners cause would be
inimical to our countrys foreign policy interests, and could disrupt our relations

with Japan, thereby creating serious implications for stability in this region. For us to
overturn the Executive Departments determination would mean an assessment of the
foreign policy judgments by a coordinate political branch to which authority to make that
judgment has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government was
without authority to negotiate the Treaty of Peace with Japan. And it is equally true that,
since time immemorial, when negotiating peace accords and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating them as
national assets, and as counters, `chips', in international bargaining. Settlement
agreements have lumped, or linked, claims deriving from private debts with others that
were intergovernmental in origin, and concessions in regard to one category of claims
might be set off against concessions in the other, or against larger political considerations
unrelated to debts.[49]

Indeed, except as an agreement might otherwise provide, international settlements


generally wipe out the underlying private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,[50] a case brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace
is concluded, neither the matter in dispute, nor the conduct of either party, during the war,
can ever be revived, or brought into contest again. All violences, injuries, or damages
sustained by the government, or people of either, during the war, are buried in oblivion;
and all those things are implied by the very treaty of peace; and therefore not necessary to
be expressed. Hence it follows, that the restitution of, or compensation for, British
property confiscated, or extinguished, during the war, by any of the United States, could
only be provided for by the treaty of peace; and if there had been no provision,
respecting these subjects, in the treaty, they could not be agitated after the treaty, by the
British government, much less by her subjects in courts of justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly


nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by nationals of one
country against the government of another country are sources of friction between the
two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed.
796 (1942). To resolve these difficulties, nations have often entered into agreements

settling the claims of their respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the government of another are
established international practice reflecting traditional international theory. L. Henkin,
Foreign Affairs and the Constitution 262 (1972). Consistent with that principle,
the United States has repeatedly exercised its sovereign authority to settle the claims of
its nationals against foreign countries. x x x Under such agreements, the President has
agreed to renounce or extinguish claims of United States nationals against foreign
governments in return for lump-sum payments or the establishment of arbitration
procedures. To be sure, many of these settlements were encouraged by the United
States claimants themselves, since a claimant's only hope of obtaining any payment at all
might lie in having his Government negotiate a diplomatic settlement on his behalf. But it
is also undisputed that the United States has sometimes disposed of the claims of its
citizens without their consent, or even without consultation with them, usually without
exclusive regard for their interests, as distinguished from those of the nation as a whole.
Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of
the United States 213 (1965) (President may waive or settle a claim against a foreign
state x x x [even] without the consent of the [injured] national). It is clear that the practice
of settling claims continues today.

Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations, but for security
purposes. The treaty sought to prevent the spread of communism in Japan, which
occupied a strategic position in the Far East. Thus, the Peace Treaty compromised
individual claims in the collective interest of the free world.
This was also the finding in a similar case involving American victims of Japanese slave
labor during the war.[52] In a consolidated case in the Northern District of California,[53]the
court dismissed the lawsuits filed, relying on the 1951 peace treaty with Japan,[54] because
of the following policy considerations:
The official record of treaty negotiations establishes that a fundamental goal of the
agreement was to settle the reparations issue once and for all. As the statement of the
chief United Statesnegotiator, John Foster Dulles, makes clear, it was well understood
that leaving open the possibility of future claims would be an unacceptable
impediment to a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The
present peace is no exception.

On the one hand, there are claims both vast and just. Japan's aggression
caused tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a Japan presently
reduced to four home islands which are unable to produce the food its
people need to live, or the raw materials they need to work. x x x
The policy of the United States that Japanese liability for reparations should be sharply
limited was informed by the experience of six years of United States-led occupation
of Japan. During the occupation the Supreme Commander of the Allied Powers (SCAP)
for the region, General Douglas MacArthur, confiscated Japanese assets in conjunction
with the task of managing the economic affairs of the vanquished nation and with a view
to reparations payments. It soon became clear that Japan's financial condition would
render any aggressive reparations plan an exercise in futility. Meanwhile, the
importance of a stable, democratic Japan as a bulwark to communism in the
region increased. At the end of 1948, MacArthur expressed the view that [t]he use of
reparations as a weapon to retard the reconstruction of a viable economy in Japan should
be combated with all possible means and recommended that the reparations issue be
settled finally and without delay.
That this policy was embodied in the treaty is clear not only from the negotiations history
but also from the Senate Foreign Relations Committee report recommending approval of
the treaty by the Senate. The committee noted, for example:
Obviously insistence upon the payment of reparations in any proportion
commensurate with the claims of the injured countries and their nationals
would wreck Japan's economy, dissipate any credit that it may possess at
present, destroy the initiative of its people, and create misery and chaos
in which the seeds of discontent and communism would flourish. In
short, [it] would be contrary to the basic purposes and policy of x x
x the United States x x x.

We thus hold that, from a municipal law perspective, that certiorari will not lie. As a
general principle and particularly here, where such an extraordinary length of time has
lapsed between the treatys conclusion and our consideration the Executive must be given
ample discretion to assess the foreign policy considerations of espousing a claim against
Japan, from the standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and whether further steps
are appropriate or necessary.
The Philippines is
not
under
any
international obligation to espouse petitioners
claims.

In the international sphere, traditionally, the only means available for individuals to bring
a claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individuals behalf. [55] Even then, it is not
the individuals rights that are being asserted, but rather, the states own rights. Nowhere is
this position more clearly reflected than in the dictum of the Permanent Court of
International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
right to ensure, in the person of its subjects, respect for the rules of international law. The
question, therefore, whether the present dispute originates in an injury to a private
interest, which in point of fact is the case in many international disputes, is irrelevant
from this standpoint. Once a State has taken up a case on behalf of one of its subjects
before an international tribunal, in the eyes of the latter the State is sole claimant.[56]

Since the exercise of diplomatic protection is the right of the State, reliance on the
right is within the absolute discretion of states, and the decision whether to exercise the
discretion may invariably be influenced by political considerations other than the legal
merits of the particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by international law, a
State may exercise diplomatic protection by whatever means and to whatever extent it
thinks fit, for it is its own right that the State is asserting. Should the natural or legal
person on whose behalf it is acting consider that their rights are not adequately
protected, they have no remedy in international law. All they can do is resort to
national law, if means are available, with a view to furthering their cause or obtaining
redress. The municipal legislator may lay upon the State an obligation to protect its
citizens abroad, and may also confer upon the national a right to demand the performance
of that obligation, and clothe the right with corresponding sanctions. However, all these
questions remain within the province of municipal law and do not affect the position
internationally.[58] (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when will it cease. It retains, in this respect, a
discretionary power the exercise of which may be determined by considerations of a
political or other nature, unrelated to the particular case.

The International Law Commissions (ILCs) Draft Articles on Diplomatic


Protection fully support this traditional view. They (i) state that "the right of diplomatic
protection belongs to or vests in the State,[59] (ii) affirm its discretionary nature by
clarifying that diplomatic protection is a "sovereign prerogative" of the State;[60] and (iii)
stress that the state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."[61]
It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured.[62] However, at present, there
is no sufficient evidence to establish a general international obligation for States to
exercise diplomatic protection of their own nationals abroad. [63] Though, perhaps
desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a
duty internationally, it is only a moral and not a legal duty, and there is no means of
enforcing its fulfillment.[64]
We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law.
[65]
However, petitioners take quite a theoretical leap in claiming that these proscriptions
automatically imply that that the Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since petitioners do not demand the
imputation of individual criminal liability, but seek to recover monetary reparations from
the state of Japan. Absent the consent of states, an applicable treaty regime, or a directive
by the Security Council, there is no non-derogable duty to institute proceedings
against Japan. Indeed,precisely because of states reluctance to directly prosecute
claims against another state, recent developments support the modern trend to
empower individuals to directly participate in suits against perpetrators of
international crimes.[66] Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against humanity and the strong policy
arguments warranting such a rule, the practice of states does not yet support the present
existence of an obligation to prosecute international crimes. [67] Of course a customary
duty of prosecution is ideal, but we cannot find enough evidence to reasonably assert its
existence. To the extent that any state practice in this area is widespread, it is in the
practice of granting amnesties, immunity, selective prosecution, or de facto impunity to
those who commit crimes against humanity.[68]

Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the
duty to prosecute perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used
as a legal term describing obligations owed by States towards the community of states as
a whole. The concept was recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State towards
the international community as a whole, and those arising vis--vis another State in the
field of diplomatic protection. By their very nature, the former are the concern of all
States. In view of the importance of the rights involved, all States can be held to have a
legal interest in their protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and
racial discrimination. Some of the corresponding rights of protection have entered into
the body of general international law others are conferred by international instruments of
a universal or quasi-universal character.

The Latin phrase, erga omnes, has since become one of the rallying cries of those sharing
a belief in the emergence of a value-based international public order. However, as is so
often the case, the reality is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to be realized in
practice.[69]
The term is closely connected with the international law concept of jus cogens. In
international law, the term jus cogens (literally, compelling law) refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus
cogens norms are considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international norms of equivalent
authority.[70]
Early strains of the jus cogens doctrine have existed since the 1700s, [71] but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von

Verdross's influential 1937 article, Forbidden Treaties in International Law.[72] The


recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs
preparation of the Vienna Convention on the Law of Treaties (VCLT). [73] Though there
was a consensus that certain international norms had attained the status of jus cogens,
[74]
the ILC was unable to reach a consensus on the proper criteria for identifying
peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that there is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the character of jus cogens.[75] In a
commentary accompanying the draft convention, the ILC indicated that the prudent
course seems to be to x x x leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals. [76] Thus, while the existence
ofjus cogens in international law is undisputed, no consensus exists on its substance,
[77]
beyond a tiny core of principles and rules.[78]
Of course, we greatly sympathize with the cause of petitioners, and we cannot
begin to comprehend the unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply concerned that, in apparent contravention of
fundamental principles of law, the petitioners appear to be without a remedy to challenge
those that have offended them before appropriate fora. Needless to say, our government
should take the lead in protecting its citizens against violation of their fundamental
human rights.Regrettably, it is not within our power to order the Executive Department
to take up the petitioners cause. Ours is only the power to urge and exhort the Executive
Department to take up petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO
Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

ANTONIO EDUARDO B. NACHURA


Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]

In Re World War II Era Japanese Forced Labor Litigation, 114 F. Supp. 2d 939 (N.D. Cal. 2000).
U.N. Doc. E/CN.4/1996/53/Add.1 (January 4, 1996), Report of the Special Rapporteur on violence against
women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human
Rights resolution 1994/45.
[3]
Treaty and customary law both provide that when rape is committed as part of a widespread or systematic attack
directed at any civilian population, regardless of its international or internal character, then it constitutes one of
the gravest crimes against humanity. This principle is codified under Article 6(c) of the 1945 Nuremberg
Charter as well as Article 5(c) of the Tokyo Charter, which enumerated murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian populations, before or during the war as
crimes against humanity, and extended in scope to include imprisonment, torture and rape by Control Council
Law No. 10.
[4]
Article 1 of the Slavery Convention provides:
For the purpose of the present Convention, the following definitions are agreed upon:
(1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of
ownership are exercised.
(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to
reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging
him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged,
and, in general, every act of trade or transport in slaves.
Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (Slavery
Convention of 1926), 60 L.N.T.S. 253, entered into force March 9, 1927.
[5]
Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person, information or a confession,
[2]

punishing him for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions. (Convention Against Torture, Article 1.1)
[6]
Signed at San Francisco, September 8, 1951; Initial entry into force: April 28, 1952. The treaty was signed
by Argentina, Australia, Belgium, Bolivia, Brazil, Cambodia, Canada, Chile, Colombia, Costa
Rica, Cuba,Czechoslovakia, Dominican
Republic, Ecuador, Egypt, El
Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Honduras, Indonesia, Iran, Iraq, Japan, Laos, Lebanon, Li
beria, Luxembourg, Mexico,
the Netherlands, New
Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, The
Philippines, Poland, Saudi
Arabia,
the Soviet
Union, Sri
Lanka, South
Africa,Syria, Turkey,
the United
Kingdom,
the United
States, Uruguay, Venezuela,Vietnam. The signatories for the Republic of the Philippines were Carlos P.
Romulo, J.M. Elizalde, Vicente Francisco, Diosdado Macapagal, Emiliano Tirona, and V.G. Sinco.
[7]
Signed in San Francisco, September 8, 1951, ratified by the Philippine Senate on July 16, 1956. Signed by the
Philippine President on July 18, 1956. Entered into force on July 23, 1956.
[8]
On September 21, 1992, the Japanese Embassy formally confirmed to the Philippine government the involvement
of the Japanese Imperial Army in the establishment of comfort women stations.
In May 1993, Japan approved textbooks featuring an account of how comfort women were forced to work as
prostitutes for the Japanese Imperial Army.
On August 4, 1993, Japanese Prime Minister Miyazawa, before resigning, formally apologized to women all
over the world who were forced to serve as comfort women:
The Japanese government regrets and sincerely apologizes for the unbearable pain that these
women regardless of their nationalities, suffered while being forced to work as so-called comfort
women.
The Japanese government expresses its heartfelt sentiments of reflection and apology to all the
women for their many sufferings and the injuries to mind and body that cannot be healed.
The Philippine government, under the administration of then President Fidel V. Ramos, accepted the formal
apology given the Japanese Government. Though the formal apology came late, it is a most welcome gesture
from the government of Japan, which has been very supportive of our economic development.
[9]
Richard J. Galvin, The Case for a Japanese Truth Commission Covering World War II Era Japanese War
Crimes, 11 TUL. J. INT'L & COMP. L. 59, 64 (2003).
[10]
See Argibay, Ad Litem Judge, International Criminal Tribunal for the Former Yugoslavia, Speech at the Stefan A.
Riesenfeld Symposium: Sexual Slavery and the Comfort Women of World War II, in 21 BERKELEY J. INT'L
L.375, 376 (2003).
[11]
Id.
[12]
Nearey, Seeking Reparations in the New Milleunium: Will Japan Compensate the Comfort Women of World War
II?, 15 TEMP. INT'L & COMP. L.J. 121, 134 (2001).
[13]
USTINIA DOLGOPOL & SNEHAL PARANJAPE, COMFORT WOMEN: AN UNFINISHED ORDEAL 15
(1994).
[14]
Id. at 48.
[15]
See Johnson, Comment, Justice for Comfort Women: Will the Alien Tort Claims Act Bring Them the Remedies
They Seek?, 20 PENN ST. INT'L L. REV. 253, 260 (2001).
[16]
Id. at 261. Soldiers disregarded rules mandating the use of condoms, and thus many women became pregnant or
infected with sexually transmitted diseases.
[17]
Boling, Mass Rape, Enforced Prostitution, and the Japanese Imperial Army: Japan Eschews International Legal
Responsibility? 3 OCCASIONAL PAPERS/REPRINT SERIES CONTEMPORARY ASIAN STUDIES 8
(1995).
[18]
Id.
[19]
YAMAMOTO ET AL., RACE, RIGHTS AND REPARATION 435-38 (2001).
[20]
Meade, From Shanghai to Globocourt: An Analysis of the Comfort Women's Defeat in Hwang v. Japan,
35 VAND. J. TRANSNAT'L L. 211, 233 (2002).
[21]
Numerous lawsuits immediately followed, including lawsuits filed by the Korean Council for Women Drafted for
Sexual Slavery, and a suit by a Dutch former comfort woman; Fisher, Japan's Postwar Compensation
Litigation, 22 WHITTIER L. REV. 35, 44 (2000).

[22]

The lower court ruling in Ha v. Japan has been the lone courtroom victory for comfort women. On December 25,
1992, ten Korean women filed the lawsuit with the Yamaguchi Prefectural Court, seeking an official apology
and compensation from the Japanese government. The plaintiffs claimed that Japan had a moral duty to atone
for its wartime crimes and a legal obligation to compensate them under international and domestic laws. More
than five years later, on April 27, 1998, the court found the Japanese government guilty of negligence and
ordered it to pay 300,000, or $2,270, to each of the three plaintiffs. However, the court denied plaintiffs
demands that the government issue an official apology. Both parties appealed, but Japan's High Court later
overturned the ruling. See Park, Broken Silence: Redressing the Mass Rape and Sexual Enslavement of Asian
Women by the Japanese Government in an Appropriate Forum, 3 ASIAN-PAC. L. & POL'Y J. 40 (2002); Kim
& Kim, Delayed Justice: The Case of the Japanese Imperial Military Sex Slaves , 16 UCLA PAC. BASIN L.J.
263 (1998). Park, Comfort Women During WW II: Are U.S. Courts a Final Resort for Justice? , 17 AM. U.
INT'L L. REV. 403, 408 (2002).
[23]
Hwang Geum Joo v. Japan (Hwang I), 172 F. Supp. 2d 52 (D.D.C. 2001), affirmed, 332 F.3d 679 (D.C. Cir.
2003), vacated, 542 U.S. 901 (2004), remanded to 413 F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1418
(2006).
[24]
Alien Tort Claims Act, 28 U.S.C. 1350 (2000). The ATCA gives US federal district courts original jurisdiction to
adjudicate civil cases and award tort damages for violations of the law of nations or United
States treaties. SeeAhmed, The Shame of Hwang v. Japan: How the International Community Has Failed Asia's
Comfort Women, 14 TEX. J. WOMEN & L. 121, 141-42 (2004).
[25]
Under the ATCA, when a cause of action is brought against a sovereign nation, the only basis for obtaining
personal jurisdiction over the defendant is through an exception to the Foreign Sovereign Immunities Act
(FSIA). SeeJeffords, Will Japan Face Its Past? The Struggle for Justice for Former Comfort
Women, 2 REGENT J. INT'L L. 145, 158 (2003/2004). The FSIA (28 U.S.C. 1604 (1994 & Supp. 1999).)
grants foreign states immunity from being sued in US district courts unless the state waives its immunity or the
claims fall within certain enumerated exceptions. The Japanese government successfully argued that it is
entitled to sovereign immunity under the FSIA. The government additionally argued that post-war treaties had
resolved the issue of reparations, which were non-justiciable political questions.
[26]
See Hwang Geum Joo v. Japan (Hwang II), 332 F.3d 679, 680-81 (D.C. Cir. 2003), vacated, 542 U.S. 901 (2004),
remanded to 413 F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1418 (2006).
[27]
See Hwang Geum Joo v. Japan (Hwang III), 542 U.S. 901 (2004) (memorandum), remanded to 413 F.3d 45
(D.C. Cir. 2005), cert. denied, 126 S. Ct. 1418 (2006).
[28]
Id.
[29]
SOH,
THE
COMFORT
WOMEN
PROJECT, SAN
FRANCISCO STATE UNIVERSITY (19972001), http://online.sfsu.edu/~soh/comfortwomen.html, at 1234-35.
[30]
An Analysis Of The Legal Liability Of The Government Of Japan For Comfort Women Stations Established
During The Second World War (Appendix); REPORT ON CONTEMPORARY FORMS OF
SLAVERY:SYSTEMATIC RAPE, SEXUAL SLAVERY AND SLAVERY-LIKE PRACTICES DURING
ARMED CONFLICT, Final report submitted by Ms. Gay J. McDougall, Special Rapporteur, Sub-Commission
on Prevention ofDiscrimination and Protection of Minorities, Commission on Human Rights (Fiftieth Session)
E/CN.4/Sub.2/1998/13 (June 22, 1998).
[31]
Chinkin, Women's International Tribunal on Japanese Sexual Slavery, 95 AM. J. INT'L. L. 335 (2001).
[32]
A large amount of evidence was presented to the tribunal for examination. Sixty-four former comfort women
from Korea and other surrounding territories in the Asia-Pacific region testified before the court. Testimony was
also presented by historical scholars, international law scholars, and two former Japanese soldiers. Additional
evidence was submitted by the prosecution teams of ten different countries, including: North and South
Korea, China,Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands. Id. at 336.
[33]
Press Release, Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for World War II
Exploitation of Comfort Women (January 31, 2007).
[34]
H.R. Res. 121, 110th Cong. (2007) (enacted).
[35]
European Parliament, Human rights: Chad, Women's Rights in Saudi Arabia, Japan's Wartime Sex Slaves, Dec.
17,
2007,
http://
www.europarl.europa.eu/sides/getDoc.do?language=EN&type=IMPRESS&reference=20071210BRI14639&secondRef=ITEM-008-EN.
[36]
The Comfort Women--A History of Trauma,
http:// taiwan.yam.org.tw/womenweb/conf_women/index_e.html.
[37]
YAMAMOTO ET AL., supra note 19 at 437. The government appointed Bunbei Hara, former Speaker of the
Upper House of the Diet, as the first President of the Asian Women's Fund (1995-1999). Former Prime Minister

Tomiichi Murayama succeeded Hara as the second president of the program (1999-present). See
Jeffords, supra note 25 at 158.
[38]
The Asian Women's Fund, http://www.awf.or.jp/english/project_ atonement.html, at 55.
[39]
369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
[40]
103 Phil 1051, 1068 (1957).
[41]
See Baker v. Carr, 369 U.S. at 211-222.
[42]
Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918).
[43]
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
[44]
CONSTITUTION, Art. VIII, Sec. 5(2)(a).
[45]
299 US 304, 57 S. Ct. 216, 81 L. Ed, 255 (1936).
[46]
396 Phil 623, 663 (2000). We held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the
sole organ and authority in the external affairs of the country. In many ways, the President is the
chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is
(then) conceded." Wielding vast powers and influence, his conduct in the external affairs of the
nation, as Jefferson describes, is "executive altogether".
[47]
501 Phil. 304, 313 (2005). We stated:
In our system of government, the President, being the head of state, is regarded as the sole organ
and authority in external relations and is the country's sole representative with foreign nations. As
the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states
and governments, extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states.
[48]
379 Phil. 165, 233-234 (2004).
[49]
HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 300 (2d 1996); see Dames and Moore v.
Regan, 453 U.S. 654, 688, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (upholding the President's authority to settle
claims of citizens as "a necessary incident to the resolution of a major foreign policy dispute between our
country and another [at least] where ... Congress acquiesced in the President's action"); Am. Ins. Ass'n v.
Garamendi, 539 U.S. 396, 424, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (acknowledging "President's authority
to provide for settling claims in winding up international hostilities"). See also Akbayan Citizens Action Party
(AKBAYAN) v. Aquino, G.R. No. 170516, July 16, 2008, 558 SCRA 468, 517 where we held that:
x x x While, on first impression, it appears wise to deter Philippine representatives from entering
into compromises, it bears noting that treaty negotiations, or any negotiation for that matter,
normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant
concessions in an area of lesser importance in order to obtain more favorable terms in an area of
greater national interest.
[50]
3 U.S. (3 Dall.) 199, 230, 1 L.Ed. 568 (1796).
[51]
453 U.S. 654, 101 S.Ct. 2972 (1981) (re the establishment of the Iran-United States Claims Tribunal following
the seizure of American personnel as hostages at the American Embassy in Tehran).
[52]
Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20 BERKELEY J. INTL. L. 11, 2532 (2002).
[53]
In Re World War II Era Japanese Forced Labor Litigation, supra note 1.
[54]
Treaty of Peace with Japan 1951, 136 UNTS 45.
[55]
The conceptual understanding that individuals have rights and responsibilities in the international arena does not
automatically mean that they have the ability to bring international claims to assert their rights. Thus, the
Permanent Court of International Justice declared that it is scarcely necessary to point out that the capacity to
possess civil rights does not necessarily imply the capacity to exercise those rights oneself. Appeal from a
Judgment of the Hungaro/Czeochoslovak Mixed Arbitral Tribunal, Judgment, 1933, PCIJ, Ser. A/B No. 61, p.
208 at 231.
[56]
PCIJ, Ser. A, No. 2, p. 11, at 16. This traditional view was repeated by the PCIJ in the Panevezys-Saldutiskis
Railway Case, the Case Concerning the Payment of Various Serbian Loans issued in France, Judgment of July
12, 1929, PCIJ Reports, Series A No. 20; and in the Case Concerning the Factory at Chorzow, Judgment
of September 13, 1928, Merits, PCIJ Reports, Series A No. 17. The ICJ has adopted it in the Reparation for
injuries suffered in the service of the United Nations Advisory Opinion: ICJ Reports 1949, p. 174;
the Nottebohm Case (second phase) Judgment of April 6, 1955: ICJ Reports 1955, p. 4 at p. 24; the Interhandel

Case (Judgment of March 21st, 1959: ICJ Reports 1959, p. 6 at p. 27) and the Barcelona Traction, Light and
Power Company, Limited case, (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).
[57]
See BORCHARD, E., DIPLOMATIC PROTECTION OF CITIZENS ABROAD AT VI (1915). Under this view,
the considerations underlying the decision to exercise or not diplomatic protection may vary depending on each
case and may rely entirely on policy considerations regardless of the interests of the directly-injured individual,
and the State is not required to provide justification for its decision.
[58]
Barcelona Traction, Light and Power Company, Limited, case, supra note 56, at p. 44 par. 78.
[59]
ILC First Reading Draft Articles on Diplomatic Protection, U.N. Doc. A/CN.4/484, ILC Report, A/53/10 (F),
par. 60, Commentary to Draft Article 2, par. (1); see also, Commentary to Draft Article 1, par. (3), and text of
Draft Article 2.
[60]
Report of the International Law Commission on the work of its 50th session, supra note 60, par. 77.
[61]
ILC First Reading Draft Articles on Diplomatic Protection, supra note 60, commentary to Draft Article 2, par.
(2).
[62]
For instance, Special Rapporteur Dugard proposed that the ILC adopt in its Draft Articles a provision under
which States would be internationally obliged to exercise diplomatic protection in favor of their nationals
injured abroad by grave breaches to jus cogens norms, if the national so requested and if he/she was not
afforded direct access to an international tribunal. The proposed article reads as follows:
Article [4]1. Unless the injured person is able to bring a claim for such injury before a competent
international court or tribunal, the State of his/her nationality has a legal duty to exercise
diplomatic protection on behalf of the injured person upon request, if the injury results from a
grave breach of a jus cogens norm attributable to another State. 2. The state of nationality is
relieved of this obligation if: (a) The exercise of diplomatic protection would seriously endanger
the overriding interests of the State and/or its people; (b) Another State exercises diplomatic
protection on behalf of the injured person; (c) The injured person does not have the effective and
dominant nationality of the State. States are obliged to provide in their municipal law for the
enforcement of this right before a competent domestic court or other independent national
authority". Special Rapporteur John Dugard, appointed in 1999, First Report on Diplomatic
Protection, par. 74 (UN Doc. A/CN.4/506 (March 7, 2000) and Corr. 1 (June 7, 2000) and Add. 1
(April 20, 2000).
However, the proposal was not accepted by the ILC, as "the question was still not ripe for treatment"
because "the State practice and their opinio juris still had not evolved in such direction". Official Records of the
General Assembly: 55th session, Supplement No. 10, Doc. A/55/10 (2000), Report of the ILC on the work of its
52nd session, p. 131. Instead, Draft Article 19, entitled Recommended Practice, suggests that states should be
encouraged to exercise diplomatic protection especially when significant injury occurred to the national.
Drafted in soft language, the Article does not purport to create any binding obligations on the state.
In addition, some States have incorporated in their municipal law a duty to exercise diplomatic protection
in favor of their nationals. (Dugard identifies this "obligation" to exist in the Constitutions of Albania, Belarus,
Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy,
Kazakhstan, Lao Peoples Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea,
Romania, Russian Federation, Spain, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, Viet Nam
and Yugoslavia, albeit with different reaches. J. Dugard, First Report on diplomatic protection, supra note 13,
par. 80), but their enforceability is also, to say the least, questionable (in many cases there are not even courts
competent to review the decision). Moreover, their existence in no way implies that international law imposes
such an obligation, simply suggesting "that certain States consider diplomatic protection for their nationals
abroad to be desirable" (ILC First Reading Draft Articles on Diplomatic Protection, supra note 60,
Commentary to Draft Article 2, par (2)).
[63]
Even decisions of national courts support the thesis that general international law as it stands does not mandate an
enforceable legal duty of diplomatic protection.
The traditional view has been challenged in the UK in a case arising from the unlawful detention by the US of
prisoners in Guantanamo Bay. In Abbasi v. Secretary of State for Foreign and Commonwealth Affairs ([2002]
EWCA Civ 1316, 19 September 2002), the applicant (a British national) sought judicial review of the adequacy
of the diplomatic actions of the British government with the US government. The UK Court of Appeals came to
the conclusion that diplomatic protection did not as such give rise to an enforceable duty under English Law. It
found that on no view would it be appropriate to order the Secretary of State to make any specific
representations to the United States, even in the face of what appears to be a clear breach of a fundamental
human right, as it is obvious that this would have an impact on the conduct of foreign policy.

Courts in the UK have also repeatedly held that the decisions taken by the executive in its dealings with foreign
states regarding the protection of British nationals abroad are non-justiciable.
(1) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai (107 ILR 462 (1985):
"x x x in the context of a situation with serious implications for the conduct of international
relations, the courts should act with a high degree of circumspection in the interests of all
concerned. It can rarely, if ever, be for judges to intervene where diplomats fear to tread." (p.479,
per Sir John Donaldson MR)
(2) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Ferhut Butt (116 ILR 607
(1999):
"The general rule is well established that the courts should not interfere in the conduct of foreign
relations by the Executive, most particularly where such interference is likely to have foreign
policy repercussions (see R. v. Secretary of State for Foreign and Commonwealth Affairs, ex
parte Everett [1989] 1 QB 811 at 820). This extends to decisions whether or not to seek to
persuade a foreign government of any international obligation (e.g. to respect human rights) which
it has assumed. What if any approach should be made to the Yemeni authorities in regard to the
conduct of the trial of these terrorist charges must be a matter for delicate diplomacy and the
considered and informed judgment of the FCO. In such matters the courts have no supervisory
role." (p. 615, per Lightman J).
"Whether and when to seek to interfere or to put pressure on in relation to the legal process, if ever
it is a sensible and a right thing to do, must be a matter for the Executive and no one else, with
their access to information and to local knowledge. It is clearly not a matter for the courts. It is
clearly a high policy decision of a government in relation to its foreign relations and is not
justiciable by way of judicial review." (p.622, per Henry LJ).
(3) R. (Suresh and Manickavasagam) v. Secretary of State for the Home Department [2001] EWHC Admin
1028 (unreported, 16 November 2001):
"... there is, in my judgment, no duty upon the Secretary of State to ensure that other nations
comply with their human rights obligations. There may be cases where the United Kingdom
Government has, for example by diplomatic means, chosen to seek to persuade another State to
take a certain course in its treatment of British nationals; but there is no duty to do so." (paragraph
19, per Sir Richard Tucker).
The South African Constitutional Court in Kaunda and others v. President of the Republic of South Africa and
others (Case CCCT23/04) recognized the constitutional basis of the right of diplomatic protection as enshrined
in the South African Constitution, but went on to hold that the nature and extent of this obligation was an aspect
of foreign policy within the discretion of the executive.
[64]
BORCHARD, E., DIPLOMATIC PROTECTION OF CITIZENS ABROAD, 29 (1915).
[65]
The concept of rape as an international crime is relatively new. This is not to say that rape has never been
historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not emerge until
after World War II. In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against
humanity explicitly set forth prohibited acts, but rape was not mentioned by name. (For example, the Treaty of
Amity and Commerce between Prussia and the United States provides that in time of war all women and
children shall not be molested in their persons. The Treaty of Amity and Commerce, Between his Majesty
the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES &
OTHER INT'L AGREEMENTS OF THE U.S. 78, 85. The 1863 Lieber Instructions classified rape as a crime of
troop discipline. (Mitchell, TheProhibition of Rape in International Humanitarian Law as a Norm of Jus
cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INTL. L. 219, 224). It specified rape as a capital crime
punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the
protection of their honour. (Family honour and rights, the lives of persons, and private property, as well as
religious convictions and practice, must be respected. Convention (IV) Respecting the Laws & Customs of War
on Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, Affirmation
of the Principles of International Law recognized by the Charter of the Nrnberg Tribunal; General Assembly
document A/64/Add.1 of 1946; See Agreement for the Prosecution and Punishment of the Major War Criminals
of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established
crimes against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and
other inhumane acts committed against any civilian population, before or during the war, or
persecutions on political, racial or religious grounds in execution of or in connection with any

crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the
country where perpetrated.
The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge Gabrielle
Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International
Arena,7 ILSA J. INTL. COMP. L. 667, 676.) However, International Military Tribunal for the Far
East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape. The Far East Tribunal
held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for
a series of crimes, including rape, committed by persons under their authority. (THE TOKYO JUDGMENT:
JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 445-54 (1977).
The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10
included the term rape in the definition of crimes against humanity. Law No. 10, adopted by the four occupying
powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts.
(Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against
Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day
international instrument to establish protections against rape for women. Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry
into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY, and the
International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it
to be prosecuted as genocide, a war crime, and a crime against humanity.
Rape is clearly emerging as a core crime within humanitarian law. (APPLEMAN, MILITARY TRIBUNALS
AND INTERNATIONAL CRIMES 299 (1954); MERON, HUMAN RIGHTS AND HUMANITARIAN
NORMS AS CUSTOMARY LAW 47 (1989). A major step in this legal development came in 1949, when rape
and sexual assault were included in the Geneva Conventions. Rape is included in the following acts committed
against persons protected by the 1949 Geneva Conventions: willful killing, torture or inhuman treatment,
including biological experiments; willfully causing great suffering or serious injury to body or health. Rape as a
violation of the laws or customs of war generally consists of violations of Article 3 of the 1949 Geneva
Conventions, which, in part, prohibits violence to life and person, in particular mutilation, cruel treatment and
torture; outrages upon personal dignity, in particular humiliating and degrading treatment. (See Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art.
3(1)(c), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85; Geneva Convention Relative to the
Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth Geneva Convention, supra note 23, art. 3(1)
(c).
Article 27 of the Fourth Geneva Convention, directed at protecting civilians during time of war, states that
women shall be especially protected against any attack on their honour, in particular against rape, enforced
prostitution, or any form of indecent assault.
Protocol I of the Geneva Conventions continues to expand the protected rights by providing that women shall be
the object of special respect and shall be protected in particular against rape, forced prostitution and any form of
indecent assault. (Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), Article 76(1), 1125 U.N.T.S. 4).
[66]
For instance, the International Criminal Court was established to deal with the most serious crimes of concern to
the international community, with jurisdiction over genocide, crimes against humanity, and war crimes, as
defined in the Rome Statute. The ICC Prosecutor can investigate allegations of crimes not only upon referral
from the Security Council and state parties, but also on information from victims, non-governmental
organizations or any other reliable source (Article 15). See also the Statute of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1
(1993), adopted by Security Council on 25 May 1993, U.N. Doc. S/RES/827 (1993).
[67]
Scharf, The Letter of the Law: The Scope of the International Legal Obligation To Prosecute Human Rights
Crimes, 59(4) LAW & CONTEMP. PROBS. 41, 59 (1996). Dugard, Dealing with Crimes of a Past Regime: Is
Amnesty Still an Option?, 12 LEIDEN J. INT'L L. 1001, 1003 (1999). Gavron, Amnesties in Light of
Developments in International Law and the Establishment of the International Criminal Court, 51 INT'L &
COMP. L.Q. 91, 106 (2002).
[68]
O'SHEA, AMNESTY FOR CRIME IN INTERNATIONAL LAW AND PRACTICE 35 (2002).

[69]

Bruno Simmas much-quoted observation encapsulates this feeling of disappointment:Viewed realistically, the
world of obligations erga omnes is still the world of the ought rather than of the isTHE CHARTER OF THE
UNITED NATIONS: A COMMENTARY 125 (Simma, ed. 1995). See Tams, Enforcing Obligations Erga
omnes in International Law (2005). In all cases where this principle has been cited, even the ICJ has found a
way to avoid giving force to the claims based on the erga omnes character of the obligation, despite having
recognized them in principle. In the South West Africa Case, the ICJ declared that an action popularis was
incompatible with existing international law. In the Nicaragua case, it evaded the consequences of a violation
of erga omnes obligations by treating human rights conventions as self-contained regimes. Nicaragua v. US,
Merits, ICJ Reports 1986, 14 et seq. (134, par. 267): However, where human rights are protected by
international conventions, that protection takes the form of such arrangements for monitoring or ensuring
respect for human rights as are provided for in the conventions themselves. In the East Timor Case, it denied
jurisdiction on the ground that Indonesia was an indispensable third party to the proceedings which had not
accepted jurisdiction. (Portugal v. Australia, ICJ Reports 1995, 90 (102, par 29) Portugals assertion that the
right of peoples to self-determination has an erga omnes character, is irreproachable.
[70]
See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 8
I.L.M. 679 [hereinafter VCLT].
[71]
Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law
distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate
consensual agreements between states from the necessary principles of international law that bind all states as a
point of conscience regardless of consent. (See Hugonis Grotii, De Jure Belli et Pacis [On the Law of War and
Peace] (William Whewell ed. & trans., John W. Parker, London 2009) (1625); Emer de Vattel, Le Droit des
Gens ou Principes de la Loi Naturelle [The Law of Nations or Principles of Natural Law] 9, 27 (1758)
(distinguishing le Droit des Gens Naturel, ou Ncessaire from le Droit Volontaire); Christian Wolff, Jus Gentium
Methodo Scientifica Pertractorum [A Scientific Method for Understanding the Law of Nations] 5 (James Brown
Scott ed., Joseph H. Drake trans., Clarendon Press 1934) (1764)). Early twentieth-century publicists such as
Lassa Oppenheim and William Hall asserted that states could not abrogate certain universally recognized
principles by mutual agreement. (William Hall, A Treatise on International Law 382-83 (8th ed. 1924) (asserting
that fundamental principles of international law may invalidate [], or at least render voidable, conflicting
international agreements); 1 Lassa Oppenheim, International Law 528 (1905).) Judges on the Permanent Court
of International Justice affirmed the existence of peremptory norms in international law by referencing
treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting
opinions. (For example, in the 1934 Oscar Chinn Case, Judge Schcking's influential dissent stated that neither an
international court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores.
Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schcking, J., dissenting).
[72]
Verdross argued that certain discrete rules of international custom had come to be recognized as having a
compulsory character notwithstanding contrary state agreements. At first, Verdross's vision of international jus
cogensencountered skepticism within the legal academy. These voices of resistance soon found themselves in
the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the
Second World War. (See Lauri Hannikainen, Peremptory Norms (Jus cogens) in International Law: Historical
Development, Criteria, Present Status 150 (1988) (surveying legal scholarship during the period 1945-69 and
reporting that about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in
international law).
[73]
In March 1953, the ILC's Special Rapporteur, Sir Hersch Lauterpacht, submitted for the ILC's consideration a
partial draft convention on treaties which stated that [a] treaty, or any of its provisions, is void if its performance
involves an act which is illegal under international law and if it is declared so to be by the International Court of
Justice. Hersch Lauterpacht, Law of Treaties: Report by Special Rapporteur, [1953] 2 Y.B. Int'l L. Comm'n 90,
93, U.N. Doc. A/CN.4/63.
[74]
See Summary Records of the 877th Meeting, [1966] 1 Y.B. Int'l L. Comm'n 227, 230-231, U.N. Doc. A/CN.4/188
(noting that the emergence of a rule of jus cogens banning aggressive war as an international crime was
evidence that international law contains minimum requirement[s] for safeguarding the existence of the
international community).
[75]
Second Report on the Law of Treaties, [1963] 2 Y.B. Int'l L. Comm'n 1, 52, U.N. Doc. A/CN.4/156.
[76]
Id. at 53.
[77]
While the ICJ recently endorsed the jus cogens concept for the first time in its 2006 Judgment on Preliminary
Objections in Armed Activities on the Territory of the Congo (Congo v. Rwanda), it declined to clarify jus
cogens'slegal status or to specify any criteria for identifying peremptory norms. (Armed Activities on the

Territory of the Congo, Jurisdiction of the Court and Admissibility of the Application (Dem. Rep. Congo
v. Rwanda)
(Judgment
of February
3,
2006),
at
31-32,
available
at
http://www.icjcij.org/docket/files/126/10435.pdf.
In some municipal cases, courts have declined to recognize international norms as peremptory while
expressing doubt about the proper criteria for identifying jus cogens. (See, e.g., Sampson v. Federal Republic of
Germany, 250 F.3d 1145, 1149 (7th Cir. 2001) (expressing concern that jus cogens should be invoked [o]nly as
a last resort)).
In other cases, national courts have accepted international norms as peremptory, but have hesitated to
enforce these norms for fear that they might thereby compromise state sovereignty. (See, e.g., Bouzari v. Iran,
[2004] 71 O.R.3d 675 (Can.) (holding that the prohibition against torture does not entail a right to a civil
remedy enforceable in a foreign court)).
In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ had refrained from
invoking the jus cogens concept in several previous cases where peremptory norms manifestly clashed with
other principles of general international law. (See Armed Activities on the Territory of the Congo (Dem. Rep.
Congo v. Rwanda) (Judgment of February 3, 2006), at 2 (Dissenting Opinion of Judge Dugard))
Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United
Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign
immunity. Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, 61).
[78]
SZTUCKI, JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF TREATIES 119-123 (1974).

ARTICLE VIII. JUDICIAL DEPARTMENT


JUDICIAL POWER
EN BANC

[G.R. Nos. 146710-15. April 3, 2001]

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity


as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST
CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES
FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO
CAPULONG
and
ERNESTO
B.
FRANCISCO,
JR., respondents.

[G.R. No. 146738. April 3, 2001]

JOSEPH
E.
ESTRADA, petitioner,
ARROYO, respondent.

vs. GLORIA

MACAPAGAL-

R E S O LUTIO N
PUNO, J.:

For resolution are petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and
Omnibus Motion in G.R. No. 146738 of the Courts Decision of March 2, 2001.
In G.R. Nos. 146710-15, petitioner raises the following grounds:
I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI, SECTION 3
(7) OF THE CONSTITUTION AND THE SETTLED JURISPRUDENCE THEREON.
II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING
WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION,
CONSIDERING THAT PETITIONER WAS ACQUITTED IN THE IMPEACHMENT
PROCEEDINGS.
III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE
IMMUNITY FROM SUIT.
IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL HAVE NOT
BEEN PREJUDICED BY PRE-TRIAL PUBLICITY.
V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE COURT TO
ENJOIN THE PRELIMINARY INVESTIGATION OF THE INCUMBENT
OMBUDSMAN, PETITIONER HAVING FAILED TO PROVE THE IMPAIRED
CAPACITY OF THE OMBUDSMAN TO RENDER A BIASED FREE DECISION.

In G.R. No. 146738, petitioner raises and argues the following issues:
1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED RESIGNED AS
OF JANUARY 20, 2001;
2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF
THE FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE,
AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA;

3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF THE


HEARSAY RULE;
4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS INABILITY TO
GOVERN CONSIDERING SECTION 11, ARTICLE VII OF THE CONSTITUTION; and
5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS RIGHT TO
FAIR TRIAL.

We find the contentions of petitioner bereft of merit.


I

Prejudicial Publicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the
Decision for adverting to newspaper accounts of the events and occurrences to reach the
conclusion that he has resigned. In our Decision, we used the totality test to arrive at the
conclusion that petitioner has resigned. We referred to and analyzed events that were prior,
contemporaneous and posterior to the oath-taking of respondent Arroyo as president. All these
events are facts which are well-established and cannot be refuted. Thus, we adverted to prior
events that built up the irresistible pressure for the petitioner to resign. These are: (1) the expose
of Governor Luis Chavit Singson on October 4, 2000; (2) the I accuse speech of then Senator
Teofisto Guingona in the Senate; (3) the joint investigation of the speech of Senator Guingona by
the Blue Ribbon Committee and the Committee on Justice; (4) the investigation of the Singson
expose by the House Committee on Public Order and Security; (5) the move to impeach the
petitioner in the House of Representatives; (6) the Pastoral Letter of Archbishop Jaime Cardinal
Sin demanding petitioners resignation; (7) a similar demand by the Catholic Bishops conference;
(8) the similar demands for petitioners resignation by former Presidents Corazon C. Aquino and
Fidel V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD and her call
for petitioner to resign; (10) the resignation of the members of petitioners Council of Senior
Economic Advisers and of Secretary Mar Roxas III from the Department of Trade and Industry;
(11) the defection of then Senate President Franklin Drilon and then Speaker of the House of
Representatives Manuel Villar and forty seven (47) representatives from petitioners Lapiang
Masang Pilipino; (12) the transmission of the Articles of Impeachment by Speaker Villar to the
Senate; (13) the unseating of Senator Drilon as Senate President and of Representative Villar as
Speaker of the House; (14) the impeachment trial of the petitioner; (15) the testimonies of
Clarissa Ocampo and former Finance Secretary Edgardo Espiritu in the impeachment trial; (16)
the 11-10 vote of the senator-judges denying the prosecutors motion to open the 2nd envelope
which allegedly contained evidence showing that petitioner held a P3.3 billion deposit in a secret
bank account under the name of Jose Velarde; (17) the prosecutors walkout and resignation; (18)
the indefinite postponement of the impeachment proceedings to give a chance to the House of
Representatives to resolve the issue of resignation of their prosecutors; (19) the rally in the
EDSA Shrine and its intensification in various parts of the country; (20) the withdrawal of
support of then Secretary of National Defense Orlando Mercado and the then Chief of Staff,
General Angelo Reyes, together with the chiefs of all the armed services; (21) the same
withdrawal of support made by the then Director General of the PNP, General Panfilo Lacson,

and the major service commanders; (22) the stream of resignations by Cabinet secretaries,
undersecretaries, assistant secretaries and bureau chiefs; (23) petitioners agreement to hold a
snap election and opening of the controversial second envelope.All these prior events are facts
which are within judicial notice by this Court. There was no need to cite their news
accounts. The reference by the Court to certain newspapers reporting them as they
happened does not make them inadmissible evidence for being hearsay. The news account
only buttressed these facts as facts. For all his loud protestations, petitioner has not singled
out any of these facts as false.
We now come to some events of January 20, 2001 contemporaneous to the oath taking of
respondent Arroyo. We used the Angara Diary to decipher the intent to resign on the part of the
petitioner. Let it be emphasized that it is not unusual for courts to distill a persons subjective
intent from the evidence before them. Everyday, courts ascertain intent in criminal cases, in civil
law cases involving last wills and testaments, in commercial cases involving contracts and in
other similar cases. As will be discussed below, the use of the Angara Diary is not prohibited by
the hearsay rule. Petitioner may disagree with some of the inferences arrived at by the Court
from the facts narrated in the Diary but that does not make the Diary inadmissible as evidence.
We did not stop with the contemporaneous events but proceeded to examine some events
posterior to the oath-taking of respondent Arroyo. Specifically, we analyzed the all important
press release of the petitioner containing his final statement which was issued after the oathtaking of respondent Arroyo as president. After analyzing its content, we ruled that petitioners
issuance of the press release and his abandonemnt of Malacaang Palace confirmed his
resignation.[1] These are overt acts which leave no doubt to the Court that the petitioner has
resigned.
In light of this finding that petitioner has resigned before 12 oclock noon of Janaury 20,
2001, the claim that the office of the President was not vacant when respondent Arroyo
took her oath of office at half past noon of the same day has no leg to stand on.
We also reject the contention that petitioners resignation was due to duress and
an involuntary resignation is no resignation at all.

x x x [I]t has been said that, in determining whether a given resignation is voluntarily
tendered, the element of voluntariness is vitiated only when the resignation is
submitted under duress brought on by government action. The three-part test for
such duress has been stated as involving the following elements: (1) whether one side
involuntarily accepted the others terms; (2) whether circumstances permitted no other
alternative; and (3) whether such circumstances were the result of coercive acts of the
opposite side. The view has also been expressed that a resignation may be found
involuntary if on the totality of the circumstances it appears that the employers
conduct in requesting resignation effectively deprived the employer of free choice in
the matter. Factors to be considered, under this test, are: (1) 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 employewe 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 objective


standard rather than by the employees purely subjective evaluation; that the
employee may perceive his or her only option to be resignation for example,
because of concerns about his or her reputation is irrelevant. Similarly, the mere
fact that the choice is between comparably unpleasant alternatives for example,
resignation or facing disciplinary charges does not of itself establish that a
resignation was induced by duress or coercion, and was therefore
involuntary. 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 termination existed. In this regard it has also been said that a
resignation resulting from a choice between resigning or facing proceedings for
dismissal is not tantamount to discharge by coercion without procedural view if the
employee is given sufficient time and opportunity for deliberation of the choice
posed. Futhermore, a resignation by an officer charged with misconduct is not given
under duress, though the appropriate authority has already determined that the officers
alternative is termination, where such authority has the legal authority to terminate the
officers 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. [2]
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 because
immediately before he left Malacaang, he asked Secretary Angara: Ed, aalis na ba ako? which
implies that he still had 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 petitioners resignation. The
Malacaang 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 Malacaang to assure that no harm would befall the petitioner as he left the
Palace. Indeed, no harm, not even a scratch, was suffered by the petitioner, the members of his
family and his Cabinet who stuck it out with him in his last hours. Petitioners 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 residence in Polk Street, Greenhills. The only incident before the
petitioner left the Palace was the stone throwing between a small group of pro and anti Erap
rallyists which resulted in minor injuries to a few of them. Certainly, there were no tanks that
rumbled through the Palace, no attack planes that flew over the presidential residence, no
shooting, no large scale violence, except verbal violence, to justify the conclusion that petitioner
was coerced to resign.
II

Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper use by this Court of
the Angara Diary. It is urged that the use of the Angara Diary to determine the state of mind of
the petitioner on the issue of his resignation violates the rule against the admission of hearsay
evidence.
We are unpersuaded. To begin with, the Angara diary is not an out of court
statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot
complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its
use. To be sure, the said Diary was frequently referred to by the parties in their pleadings. [3] The
three parts of the Diary published in the PDI from February 4-6, 2001 were attached as Annexes
A-C, respectively, of the Memorandum of private respondents Romeo T. Capulong, et al., dated
February 20, 2001. The second and third parts of the Diary were earlier also attached as Annexes
12 and 13 of the Comment of private respondents Capulong, et al., dated February 12, 2001. In
fact, petitioner even cited in his Second Supplemental Reply Memorandum both the second part
of the diary, published on February 5, 2001, [4] and the third part, published on February 6, 2001.
[5]
It was also extensively used by Secretary of Justice Hernando Perez in his oral
arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but
unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of court statement, still its use is
not covered bythe hearsay rule.[6] Evidence is called hearsay when its probative force depends, in
whole or in part, on the competency and credibility of some persons other than the witness by
whom it is sought to produce it.[7] There are three reasons for excluding hearsay evidence: (1)
absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath.
[8]
Not at all hearsay evidence, however, is inadmissible as evidence. Over the years, a huge body
of hearsay evidence has been admitted by courts due to their relevance, trustworthiness and
necessity.[9] The emergence of these exceptions and their wide spread acceptance is wellexplained by Weinstein, Mansfield, Abrams and Berger as follows:

xxx
On the other hand, we all make decisions in our everyday lives on the basis of other
persons accounts of what happened, and verdicts are usually sustained and affirmed
even if they are based on hearsay erroneously admitted, or admitted because no
objection was made. See Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985)
(hearsay evidence alone can support a verdict).Although volumes have been written
suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all
hearsay evidence. Indeed, the decided historical trend has been to exclude
categories of highly probative statements from the definition of hearsay (sections
2 and 3, infra), and to develop more class exceptions to the hearsay rule (sections
4-11, infra).Furthermore, many states have added to their rules the residual, or
catch-all, exceptions first pioneered by the Federal Rules which authorize the
admission of hearsay that does not satisfy a class exception, provided it is
adequately trustworthy and probative (section 12, infra).

Moreover, some commentators believe that the hearsay rule should be abolished
altogether instead of being loosened. See, e.g., Note, The Theoretical Foundation of
the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted):
The Federal Rules of Evidence provide that [a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Under this structure, exclusion is justified by fears of how the jury will be
influenced by the evidence. However, it is not traditional to think of hearsay as merely
a subdivision of this structure, and the Federal Rules do not conceive of hearsay in
that manner. Prejudice refers to the jurys use of evidence for inferences other than
those for which the evidence is legally relevant; by contrast, the rule against hearsay
questions the jurys ability to evaluate the strength of a legitimate inference to be
drawn from the evidence. For example, were a judge to exclude testimony because a
witness was particularly smooth or convincing, there would be no doubt as to the
usurpation of the jurys function. Thus, unlike prejudices recognized by the evidence
rules, such as those stemming from racial or religious biases or from the introduction
of photographs of a victims final state, the exclusion of hearsay on the basis of
misperception strikes at the root of the jurys function by usurping its power to process
quite ordinary evidence, the type of information routinely encountered by jurors in
their everyday lives.
Since virtually all criteria seeking to distinguish between good and bad hearsay are
either incoherent, inconsistent, or indeterminate, the only altenative to a general rule
of admission would be an absolute rule of exclusion, which is surely inferior. More
important, the assumptions necessary to justify a rule against hearsay seem
insupportable and, in any event, are inconsistent with accepted notions of the function
of the jury. Therefore, the hearsay rules should be abolished.
Some support for this view can be found in the limited empirical research now
available which is, however, derived from simulations that suggests that admitting
hearsay has little effect on trial outcomes because jurors discount the value of
hearsay evidence. See Rakos & Landsman, Researching the Hearsay Rule: Emerging
Findings, General Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992); Miene,
Park, & Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76
Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors Perceptions of Eyewitness
and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research
Essay: A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay
Evidence in American Courts, 15 Law & Psychol. Rev. 65 (1991).
Others, even if they concede that restrictions on hearsay have some utility, question
whether the benefits outweigh the cost:

The cost of maintaining the rule is not just a function of its contribution to justice. It
also includes the time spent on litigating the rule. And of course this is not just a cost
voluntarily borne by the parties, for in our system virtually all the cost of the court
salaries, administrative costs, and capital costs are borne by the public. As expensive
as litigation is for the parties, it is supported by an enormous public subsidy. Each
time a hearsay question is litigated, the public pays. The rule imposes other costs
as well. Enormous time is spent teaching and writing about the hearsay rule, which are
both costly enterprises. In some law schools, students spend over half their time in
evidence classes learning the intricacies of the hearsay rule, and enormous academic
resources are expended on the rule.
Allen, Commentary on Professor Friendmans Article: The Evolution of the Hearsay
Rule to a Rule of Admission, 76 Minn.L.Rev. 797, 800 [1992] (but would abolish rule
only in civil cases).See also Friedman, Toward a Partial Economic, Game-Theoretic
Analysis of Hearsay, 76 Minn. L. Rev. 723 (1992).[10]
A complete analysis of any hearsay problem requires that we further determine whether
the hearsay evidence is one exempted from the rules of exclusion. A more circumspect
examination of our rules of exclusion will show that they do not cover admissions of a party
and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that the act,
declaration or omission of a party as to a relevant fact may be given in evidence against him. [11] It
has long been settled that these admissions are admissible even if they are hearsay. Retired Justice Oscar
Herrera of the Court of Appeals cites the various authorities who explain why admissions are not
covered by the hearsay rule:[12]

Wigmore, after pointing out that the partys declaration has generally the probative
value of any other persons asssertion, argued that it had a special value when offered
against the party. In that circumstance, the admission discredits the partys statement
with the present claim asserted in pleadings and testimony, much like a witness
impeached by contradictory statements.Moreover, he continued, admissions pass the
gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded
if there was no opportunity for the opponent to cross-examine because it is the
opponents own declaration, and he does not need to cross examine
himself. Wigmore then added that the Hearsay Rule is satisfied since the party now as
opponent has the full opportunity to put himself on the stand and explain his former
assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec.
154, McCormick)
According to Morgan: The admissibility of an admission made by the party himself
rests not upon any notion that the circumstances in which it was made furnish the trier
means of evaluating it fairly, but upon the adversary theory of litigation. A party can
hardly object that he had no opportunity to cross-examine himself or that he is
unworthy of credence save when speaking under sanction of an oath.

A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible
against him, for the reason that it is fair to presume that they correspond with the
truth, and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583).
The Angara Diary contains direct statements of petitioner which can be categorized
as admissions of a party: his proposal for a snap presidential election where he would not be a
candidate; his statement that he only wanted the five-day period promised by Chief of Staff
Angelo Reyes; his statements that he would leave by Monday if the second envelope would be
opened by Monday and Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako
sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this its too painful. Im
tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will
go. We noted that days before, petitioner had repeatedly declared that he would not resign despite
the growing clamor for his resignation. The reason for the meltdown is obvious - - - his will not
to resign has wilted.
It is, however, argued that the Angara Diary is not the diary of the petitioner, hence,
non-binding on him. The argument overlooks the doctrine of adoptive admission. An adoptive
admission is a partys reaction to a statement or action by another person when it is reasonable to
treat the partys reaction as an admission of something stated or implied by the other person.
[13]
Jones explains that the basis for admissibility of admissions made vicariously is that arising from
the ratification or adoption by the party of the statements which the other person had made. [14] To
use the blunt language of Mueller and Kirkpatrick, this process of attribution is not mumbo jumbo but
common sense.[15] In the Angara Diary, the options of the petitioner started to dwindle when the
armed forces withdrew its support from him as President and commander-in-chief. Thus,
Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider
the option of dignified exit or resignation. Petitioner did not object to the suggested option but
simply said he could never leave the country. Petitioners silence on this and other related
suggestions can be taken as an admission by him.[16]
Petitioner further contends that the use of the Angara diary against him violated the rule
on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court,
viz:The rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
Again, petitioner errs in his contention. The res inter alios acta rule has several
exceptions. One of them is provided in section 29 of Rule 130 with respect to admissions by a
co-partner or agent.
Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little
President. Indeed, he was authorized by the petitioner to act for him in the critical hours and
days before he abandoned Malacaang Palace. Thus, according to the Angara Diary, the
petitioner told Secretary Angara: Mula umpisa pa lang ng kampanya, Ed, ikaw na lang
pinakikinggan ko. At hanggang sa huli, ikaw pa rin. (Since the start of the campaign, Ed, you
have been the only one Ive listened to. And now at the end, you still are.) [17] This statement of full
trust was made by the petitioner after Secretary Angara briefed him about the progress of the first
negotiation. True to this trust, the petitioner had to ask Secretary Angara if he would already leave
Malacaang after taking their final lunch on January 20, 2001 at about 1:00 p.m. The Angara
Diary quotes the petitioner as saying to Secretary Angara: ed, kailangan ko na bang umalis? (Do I

have to leave now?)[18] Secretary Angara told him to go and he did. Petitioner cannot deny that
Secretary Angara headed his team of negotiators that met with the team of the respondent Arroyo
to discuss the peaceful and orderly transfer of power after his relinquishment of the powers of the
presidency. The Diary shows that petitioner was always briefed by Secretary Angara on the
progress of their negotiations.Secretary Angara acted for and in behalf of the petitioner in the
crucial days before respondent Arroyo took her oath as President. Consequently, petitioner is
bound by the acts and declarations of Secretary Angara.
Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on
the principal (petitioner).[19] Jones very well explains the reasons for the rule, viz: What is done,
by agent, is done by the principal through him, as through a mere instrument. So, whatever is
said by an agent, either in making a contract for his principal, or at the time and accompanying
the performance of any act within the scope of his authority, having relation to, and connected
with, and in the course of the particular contract or transaction in which he is then engaged, or in
the language of the old writers, dum fervet opus is, in legal effect, said by his principal and
admissible in evidence against such principal.[20]
Moreover, the ban on hearsay evidence does not cover independently relevant
statements. These are statements which are relevant independently of whether they are true
or not.They belong to two (2) classes: (1) those statements which are the very facts in issue, and
(2) those statements which are circumstantial evidence of the facts in issue. The second class
includes the following:[21]
a. Statement of a person showing his state of mind, that is, his mental condition, knowledge,
belief, intention, ill will and other emotions;
b. Statements of a person which show his physical condition, as illness and the like;
c. Statements of a person from which an inference may be made as to the state of mind of
another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter;
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness.

Again, Jones tells us why these independently relevant statements are not covered by
the prohibition against hearsay evidence:[22]

1088. Mental State or Condition Proof of Knowledge.- There are a number of comon
issues, forming a general class, in proof of which hearsay is so obviously necessary
that it is not customary to refer to its admissibility as by virtue of any exception to the
general exclusionary rule. Admissibility, in such cases, is as of course. For
example, where any mental state or condition is in issue, such as motive, malice,
knowledge, intent, assent or dissent, unless direct testimony of the particular person is
to be taken as conclusive of his state of mind, the only method of proof available is
testimony of others to the acts or statements of such person. Where his acts or
statements are against his interest, they are plainly admissible within the rules
hereinabove announced as to admissions against interest. And even where not against

interest, if they are so closely connected with the event or transaction in issue as to
constitute one of the very facts in controversy, they become admissible of necessity.
As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his
state of mind and are circumstantial evidence of his intent to resign. It also contains statements of
Secretary Angara from which we can reasonably deduce petitioners intent to resign. They are
admissible and they are not covered by the rule on hearsay. This has long been a quiet area of our
law on evidence and petitioners attempt to foment a belated tempest cannot receive our
imprimatur.
Petitioner also contends that the rules on authentication of private writings and best
evidence were violated in our Decision, viz:

The use of the Angara diary palpably breached several hornbook rules of evidence,
such as the rule on authentication of private writings
xxx

A. Rule on Proof of Private Writings Violated


The rule governing private documents as evidence was violated. The law provides that
before any private writing offered as authentic is received in evidence, its due
execution and authenticity must be proved either: a) by anyone who saw the document
executed or written, or b) by evidence of the genuineness of the signature or
handwriting of the maker.
xxx

B. Best Evidence Rule Infringed


Clearly, the newspaper reproduction is not the best evidence of the Angara diary. It is
secondary evidence, of dubious authenticity. It was however used by this Honorable
Court without proof of the unavailability of the original or duplicate original of the
diary. The Best Evidence Rule should have been applied since the contents of the
diary are the subject of inquiry.
The rule is that, except in four (4) specific instances, [w]hen the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original
document itself.[23]
Petitioners contention is without merit. In regard to the Best Evidence rule, the Rules of
Court provides in sections 2 to 4 of Rule 130, as follows:

Sec. 2. Documentary evidence. Documents as evidence consist of writings or any


material containing letters, words, numbers, figures or other modes of written
expressions offered as proof of their contents.
Sec. 3. Original document must be produced; exceptions. When the subject of inquiry
is the contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom
the evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.
Sec. 4. Original of document. (a) The original of a document is one the contents of
which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time,
with identical contents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise equally
regarded as originals.
It is true that the Court relied not upon the original but only copy of the Angara Diary as
published in the Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did
not, however, violate the best evidence rule. Wigmore, in his book on evidence, states that:

Production of the original may be dispensed with, in the trial courts discretion,
whenever in the case in hand the opponent does not bona fide dispute the contents
of the document and no other useful purpose will be served by requiring production.
[24]

xxx

In several Canadian provinces, the principle of unavailability has been abandoned, for
certain documents in which ordinarily no real dispute arised. This measure is a
sensible and progressive one and deserves universal adoption (post, sec. 1233). Its
essential feature is that a copy may be used unconditionally, if the opponent has been
given an opportunity to inspect it. (empahsis supplied)
Franciscos opinion is of the same tenor, viz:

Generally speaking, an objection by the party against whom secondary evidence is


sought to be introduced is essential to bring the best evidence rule into application;
and frequently, where secondary evidence has been admitted, the rule of exclusion
might have successfully been invoked if proper and timely objection had been
taken. No general rule as to the form or mode of objecting to the admission of
secondary evidence is set forth. Suffice it to say here that the objection should be
made in proper season that is, whenever it appears that there is better evidence
than that which is offered and before the secondary evidence has been
admitted. The objection itself should be sufficiently definite to present a tangible
question for the courts consideration.[25]
He adds:

Secondary evidence of the content of the writing will be received in evidence if no


objection is made to its reception.[26]
In regard to the authentication of private writings, the Rules of Court provides in section 20 of
Rule 132, viz:

Sec. 20. Proof of private document. Before any private document offered as authentic
is received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.
On the rule of authentication of private writings, Francisco states that:

A proper foundation must be laid for the admission of documentary evidence; that is,
the identity and authenticity of the document must be reasonably established as a prerequisite to its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263,
and others) However, a party who does not deny the genuineness of a proffered
instrument may not object that it was not properly identified before it was

admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103
A.L.R. 835).[27]
Petitioner cites the case of State prosecutors v. Muro,[28] which frowned on reliance by
courts on newspaper accounts. In that case, Judge Muro was dismissed from the service for
relying on a newspaper account in dismissing eleven (11) cases against Mrs. Imelda Romualdez
Marcos. There is a significant difference, however, between the Muro case and the cases at bar. In
the Murocase, Judge Muro dismissed the cases against Mrs. Marcos on the basis of a newspaper
account without affording the prosecution the basic opportunity to be heard on the matter by way of
a written comment or on oral argument. . .(this is) not only a blatant denial of elementary due
process to the Government but is palpably indicative of bad faith and partiality. In the instant
cases, however, the petitioner had an opportunity to object to the admissibility of the Angara
Diary when he filed his Memorandum dated February 20, 2001, Reply Memorandum dated
February 22, 2001, Supplemental Memorandum dated February 23, 2001, and Second
Supplemental memorandum dated February 24, 2001. He was therefore not denied due
process. In the words of Wigmore,supra, petitioner had been given an opportunity to inspect
the Angara Diary but did not object to its admissibility. It is already too late in the day to raise his
objections in an Omnibus Motion, after theAngara Diary has been used as evidence and a decision rendered partly
on the basis thereof.
III

Temporary Inability

Petitioner argues that the Court misinterpreted the meaning of section 11, Article VII, of the
Constitution in that congress can only decide the issue of inability when there is a variance of
opinion between a majority of the Cabinet and the President. The situation presents itself when
majority of the Cabinet determines that the President is unable to govern; later, the President
informs Congress that his inability has ceased but is contradicted by a majority of the members
of the Cabinet. It is also urged that the presidents judgment that he is unable to govern
temporarily which is thereafter communicated to the Speaker of the House and the President of
the Senate is the political question which this Court cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he himself made the
submission in G.R. No. 146738 that Congress has the ultimate authority under the
Constitution to determine whether the President is incapable of performing his functions in
the manner provided for in section 11 of Article VII.[29] We sustained this submission and
held that by its many acts, Congress has already determined and dismissed the claim of alleged
temporary inability to govern proffered by petitioner. If petitioner now feels aggrieved by
the manner Congress exercised its power, it is incumbent upon him to seek redress from
Congress itself. The power is conceded by the petitioner to be with Congress and its alleged
erroneous exercise cannot be corrected by this Court. The recognition of respondent Arroyo
as our de jure president made by Congress is unquestionably a political judgment. It is
significant that House Resolution No. 176 cited as the bases of its judgment such factors as
the peoples loss of confidence on the ability of former President Joseph Ejercito Estrada to
effectively govern and the members of theinternational community had extended their

recognition of Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the


Philippines and it has a constitutional duty of fealty to the supreme will of the people x x
x. This political judgment may be right or wrong but Congress is answerable only to the
people for its judgment. Its wisdom is fit to be debated before the tribunal of the people and not
before a court of justice. Needles to state, the doctrine of separation of power constitutes
an inseparable bar against this courts interposition of its power of judicial review to review the
judgment of Congress rejecting petitioners claim that he is still the President, albeit on leave and
that respondent Arroyo is merely an acting President.
Petitioner attempts to extricate himself from his submission that Congress has the ultimate
authority to determine his inability to govern, and whose determination is a political question by
now arguing that whether one is a de jure or de facto President is a judicial
question. Petitioners change of theory, ill disguised as it is, does not at all impress. The cases at
bar do not present the general issue of whether the respondent Arroyo is the de jure or a de
facto President. Specific issues were raised to the Court for resolution and we ruled on an issue
by issue basis. On the issue of resignation under section 8, Article VII of the Constitution, we
held that the issue is legal and ruled that petitioner has resigned from office before respondent
Arroyo took her oath as President. On the issue of inability to govern under section 11, Article
VII of the Constitution, we held that the Congress has the ultimate authority to determine the
question as opined by the petitioner himself and that the determination of Congress is a political
judgment which this Court cannot review. Petitioner cannot blur these specific rulings by the
generalization that whether one is a de jure or de facto President is a judicial question.
Petitioner now appears to fault Congress for its various acts expressed thru resolutions
which brushed off his temporary inability to govern and President-on-leave argument. He
asserts that these acts of Congress should not be accorded any legal significance because: (1)
they are post facto and (2) a declaration of presidential incapacity cannot be implied.
We disagree. There is nothing in section 11 of Article VII of the Constitution which states
that the declaration by Congress of the Presidents inability must always be a priori or before the
Vice-President assumes the presidency. In the cases at bar, special consideration should be given
to the fact that the events which led to the resignation of the petitioner happened at express speed
and culminated on a Saturday. Congress was then not in session and had no reasonable
opportunity to act a priori on petitioners letter claiming inability to govern. To be sure,
however, the petitioner cannot strictly maintain that the President of the Senate, the Honorable
Aquilino Pimentel, Jr. and the then Speaker of the House of Representatives, the Honorable
Arnulfo P. Fuentebella, recognized respondent Arroyo as the constitutional successor to the
presidency post facto. Petitioner himself states that his letter alleging his inability to govern was
received by the Office of the Speaker on January 20, 2001 at 8:30 A.M. and the Office of the
Senate at 9 P.M. of the same day.[30] Respondent took her oath of office a few minutes past 12
oclock in the afternoon of January 20. Before the oath-taking, Senate President Pimentel, Jr. and
Speaker Fuentebella had prepared a Joint Statement which states:[31]

Joint Statement of Support


and Recognition from the
Senate President and the Speaker
Of the House of Representatives

We, the elected leaders of the Senate and the House of Representatives, are called
upon to address the constitutional crisis affecting the authority of the President to
effectively govern our distressed nation. We understand that the Supreme Court at that
time is issuing an en banc resolution recognizing this political reality. While we may
differ on the means to effect a change of leadership, we however, cannot be indifferent
and must act resolutely. Thus, in line with our sworn duty to represent our people
and in pursuit of our goals for peace and prosperity to all, we, the Senate
President and the Speaker of the House of Representatives, hereby declare our
support and recognition to the constitutional successor to the Presidency. We
similarly call on all sectors to close ranks despite our political differences. May God
bless our nation in this period of new beginnings.
Mabuhay and Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQUILINO PIMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA
Speaker of the House of Representatives
This a priori recognition by the President of the Senate and the Speaker of the House of
Representatives of respondent Arroyo as the constitutional successor to the presidency was
followed post facto by various resolutions of the Senate and the House, in effect, confirming this
recognition. Thus, Resolution No. 176 expressed x x x the support of the House of
Representatives to the assumption into office by Vice-President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nations goal under the
Constitution.[32] Resolution No. 82 of the Senate and Resolution No. 178 of the House of
Representatives both confirmed the nomination of then Senator Teofisto Guingona, Jr., as VicePresident.[33] It also passed Resolution No. 83 declaring the impeachment court functus officio.
[34]
Both Houses sent bills to respondent Arroyo to be signed by her into law as President of the
Philippines.[35] These acts of Congress, a priori and post facto, cannot be dismissed as merely
implied recognitions of respondent Arroyo, as the President of the Republic. Petitioners
insistence that respondent Arroyo is just a de facto President because said acts of Congress x x x
are mere circumstances of acquiescence calculated to induce people to submit to respondents
exercise of the powers of the presidency[36] is a guesswork far divorced from reality to deserve
further discussion.
Similarly way off the mark is petitioners point that while the Constitution has made
Congress the national board of canvassers for presidential and vice-presidential elections, this
Honorable Court nonetheless remains the sole judge in presidential and vice presidential
contests.[37] He thus postulates that such constitutional provision [38] is indicative of the desire of
the sovereign people to keep out of the hands of Congress questions as to the legality of a
persons claim to the presidential office.[39] Suffice to state that the inference is illogical. Indeed,
there is no room to resort to inference. The Constitution clearly sets out the structure on how
vacancies and election contest in the office of the President shall be decided. Thus, section 7 of

Article VII covers the instance when (a) the President-elect fails to qualify, (b) if a President
shall not have been chosen and (c) if at the beginning of the term of the President, the Presidentelect shall have died or shall have become permanently disabled. Section 8 of Article VII covers
the situation of the death, permanent disability, removal from office or resignation of the
President. Section 11 of Article VII covers the case where the President transmits to the
President of the Senate and the Speaker of the House of Representatives his written declaration
that he is unable to discharge the powers and duties of his office. In each case, the Constitution
specifies the body that will resolve the issues that may arise from the contingency. In case of
election contest, section 4, Article VII provides that the contests shall be resolved by this Court
sitting en banc. In case of resignation of the President, it is not disputed that this Court has
jurisdiction to decide the issue. In case of inability to govern, section 11 of Article VII gives the
Congress the power to adjudge the issue and petitioner himself submitted this thesis which was
shared by this Court. In light of these clear provisions of the Constitution, it is inappropriate, to
say the least, for petitioner to make inferences that simply distort their meanings.
IV

Impeachment and Absolute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article XI of the Constitution
which provides:

(7) Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the Philippines,
but the party convicted should nevertheless be liable and subject to prosecution, trial
and punishment according to law.
Petitioner reiterates the argument that he must be first convicted in the impeachment
proceedings before he could be criminally prosecuted. A plain reading of the provision will not
yield this conclusion. The provision conveys two uncomplicated ideas: first, it tells us that
judgment in impeachment cases has a limited reach. . .i.e., it cannot extend further than removal
from office and disqualification to hold any office under the Republic of the Philippines,
and second, it tells us the consequence of the limited reach of a judgment in impeachment
proceedings considering its nature, i.e., that the party convicted shall still be liable and subject to
prosecution, trial and punishment according to law. No amount of manipulation will justify
petitioners non sequitursubmission that the provision requires that his conviction in the
impeachment proceedings is a condition sine qua non to his prosecution, trial and punishment
for the offenses he is now facing before the respondent Ombudsman.
Petitioner contends that the private and public prosecutors walk out from the impeachment
proceedings should be considered failure to prosecute on the part of the public and private
prosecutors, and the termination of the case by the Senate is equivalent to acquittal.[40] He
explains failure to prosecute as the failure of the prosecution to prove the case, hence dismissal
on such grounds is a dismissal on the merits. [41] He then concludes that dismissal of a case for

failure to prosecute amounts to an acquittal for purposes of applying the rule against double
jeopardy.[42]
Without ruling on the nature of impeachment proceedings, we reject petitioners
submission.
The records will show that the prosecutors walked out in the January 16, 2001 hearing of
the impeachment cases when by a vote of 11-10, the Senator-judges refused to open the second
envelope allegedly containing the P3.3 billion deposit of the petitioner in a secret bank account
under the name Jose Velarde. The next day, January 17, the public prosecutors submitted a letter
to the Speaker of the House tendering their resignation. They also filed their Manifestation of
Withdrawal of Appearance with the impeachment tribunal. Senator Raul Roco immediately
moved for the indefinite suspension of the impeachment proceedings until the House of
Representatives shall have resolved the resignation of the public prosecutors. The Roco
motion was then granted by Chief Justice Davide, Jr. Before the House could resolve the issue
of resignation of its prosecutors or on January 20, 2001, petitioner relinquished the presidency
and respondent Arroyo took her oath as President of the Republic. Thus, on February
7, 2001, the Senate passed Resolution No. 83 declaring that the impeachment court is functus
officio.
Prescinding from these facts, petitioner cannot invoke double jeopardy. Double
jeopardy attaches only: (1) upon a valid complaint; (2) before a competent court; (3) after
arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or
convicted or the case was dismissed or otherwise terminated without the express consent of the
accused.[43]Assuming arguendo that the first four requisites of double jeopardy were complied
with, petitioner failed to satisfy the fifth requisite for he was not acquitted nor was the
impeachment proceeding dismissed without his express consent. Petitioners claim of double
jeopardy cannot be predicated on prior conviction for he was not convicted by the impeachment
court. At best, his claim of previous acquittal may be scrutinized in light of a violation of his
right to speedy trial, which amounts to a failure to prosecute. As Bernas points out, a 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.
[44]

This Court held in Esmea v. Pogoy[45], viz:

If the defendant wants to exercise his constitutional right to a speedy trial, he should
ask, not for the dismissal, but for the trial of the case. After the prosecutions motion
for postponement of the trial is denied and upon order of the court the fiscal does not
or cannot produce his evidence and, consequently fails to prove the defendants guilt,
the court upon defendants motion shall dismiss the case, such dismissall amounting to
an acquittal of the defendant.
In a more recent case, this Court held:

It is true that in an unbroken line of cases, we have held that the dismissal of cases on
the ground of failure to prosecute is equivalent to an acquittal that would bar further

prosecution of the accused for the same offense. It must be stressed, however, that
these dismissals were predicated on the clear right of the accused to speedy
trial. These cases are not applicable to the petition at bench considering that the right
of the private respondents to speedy trial has not been violated by the State. For this
reason, private respondents cannot invoke their right against double jeopardy.[46]
Petitioner did not move for the dismissal of the impeachment case against him. Even
assuming arguendo that there was a move for its dismissal, not every invocation of an accuseds
right to speedy trial is meritorious. While the Court accords due importance to an accuseds right
to a speedy trial and adheres to a policy of speedy administration of justice, this right cannot be
invoked loosely. Unjustified postponements which prolong the trial for an unreasonable length of
time are what offend the right of the accused to speedy trial.[47] The following provisions of the
Revised Rules of Criminal Procedure are apropos:

Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions,
the accused shall be entitled to the following rights:
(h) To have speedy, impartial and public trial.
Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once
commenced shall continue from day to day as far as practicable until terminated. It
may be postponed for a reasonable length of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the
case for continuous trial on a weekly or other short-term trial calendar at the earliest
possible time so as to ensure speedy trial. In no case shall the entire trial period
exceed one hundred eighty (180) days from the first day of trial, except as otherwise
authorized by the Supreme Court.
Petitioner therefore failed to show that the postponement of the impeachment
proceedings was unjustified, much less that it was for an unreasonable length of
time. Recalling the facts, on January 17, 2001, the impeachment proceeding was suspended until
the House of Representatives shall have resolved the issue on the resignation of the public
prosecutors. This was justified and understandable for an impeachment proceeding without a
panel of prosecutors is a mockery of the impeachment process. However, three (3) days from the
suspension or January 20, 2001, petitioners resignation supervened. With the sudden turn of
events, the impeachment court became functus officio and the proceedings were therefore
terminated. By no stretch of the imagination can the four-day period from the time the
impeachment proceeding was suspended to the day petitioner resigned, constitute an
unreasonable period of delay violative of the right of the accused to speedy trial.
Nor can the claim of double jeopardy be grounded on the dismissal or termination of
the case without the express consent of the accused. We reiterate that the impeachment
proceeding was closed only after the petitioner had resigned from the presidency, thereby
rendering the impeachment court functus officio. By resigning from the presidency, petitioner

more than consented to the termination of the impeachmment case against him, for he brought
about the termination of the impeachment proceedings. We have consistently ruled that when the
dismissal or termination of the case is made at the instance of the accused, there is no double
jeopardy.[48]
Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from
suit. His arguments are merely recycled and we need not prolong the longevity of the debate on
the subject. In our Decision, we exhaustively traced the origin of executive immunity in our
jurisdiction and its bends and turns up to the present time. We held that given the intent of the
1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner,
as a non-sitting President, cannot claim executive immunity for his alleged criminal acts
committed while a sitting President. Petitioners rehashed arguments including their thinly
disguised new spins are based on the rejected contention that he is still President, albeit, a
President on leave. His stance that his immunity covers his entire term of office or until June 30,
2004 disregards the reality that he has relinquished the presidency and there is now a new de
jurePresident.
Petitioner goes a step further and avers that even a non-sitting President enjoys immunity
from suit during his term of office. He buttresses his position with the deliberations of the
Constitutional Commission, viz:

Mr. Suarez. Thank you.


The last question is with reference to the Committees omitting in the draft proposal
the immunity provision for the President. I agree with Commissioner Nolledo that the
Committee 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 sentence 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 consider 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 the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification. [49]


Petitioner, however, fails to distinguish between term and tenure. The term means the
time during which the officer may claim to hold the office as of right, and fixes the interval after
which the several incumbents shall succeed one another. The tenure represents the term during
which the incumbent actually holds office. The tenure may be shorter than the term for reasons

within or beyond the power of the incumbent.[50] From the deliberations, the intent of the
framers is clear that the immunity of the president from suit is concurrent only with his
tenure and not his term.
Indeed, petitioners stubborn stance cannot but bolster the belief that the cases at bar were
filed not really for petitioner to reclaim the presidency but just to take advantage of the immunity
attached to the presidency and thus, derail the investigation of the criminal cases pending against
him in the Office of the Ombudsman.
V

Prejudicial Publicity on the Ombudsman

Petitioner hangs tough on his submission that his due process rights to a fair trial have been
prejudiced by pre-trial publicity. In our Decision, we held that there is not enough evidence to
sustain petitioners claim of prejudicial publicity. Unconvinced, petitioner alleges that the vivid
narration of events in our Decision itself proves the pervasiveness of the prejudicial publicity. He
then posits the thesis that doubtless, the national fixation with the probable guilt of petitioner
fueled by the hate campaign launched by some high circulation newspaper and by the bully
pulpit of priests and bishops left indelible impression on all sectors of the citizenry
and all regions, so harsh and so pervasive that the prosecution and the judiciary can no longer
assure petitioner a sporting chance.[51] To be sure, petitioner engages in exageration when he
alleges that all sectors of the citizenry and all regions have been irrevocably influenced by this
barrage of prejudicial publicity. This exaggeration collides with petitioners claim that he still
enjoys the support of the majority of our people, especially the masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the transaction
speaks for itself) to support his argument. Under the res ipsa loquitur rule in its broad sense, the
fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and
present a question of fact for defendant to meet with an explanation. [52] It is not a rule of
substantive law but more a procedural rule. Its mere invocation does not exempt the plaintiff
with the requirement of proof to prove negligence. It merely allows the plaintiff to present along
with the proof of the accident, enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence and to thereby place on the defendant the
burden of going forward with the proof.[53]
We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule usually applied
only in tort cases, to the cases at bar. Indeed, there is no court in the whole world that has
applied the res ipsa loquitur rule to resolve the issue of prejudicial publicity. We again stress
that the issue before us is whether the alleged pervasive publicity of the cases against the
petitioner has prejudiced the minds of the members of the panel of investigators. We reiterate the
test we laid down in People v. Teehankee,[54] to resolve this issue, viz:

We cannot sustain appellants claim that he was denied the right to impartial trial due
to prejudicial publicity. It is true that the print and broadcast media gave the case at
bar pervasive publicity, just like all high profile and high stake criminal trials. Then
and now, we rule that the right of an accused to a fair trial is not incompatible to a
free press. To be sure, responsible reporting enhances an accuseds right to a fair trial
for, as well pointed out , a responsible press has always been regarded as the
handmaiden of effective judicial administration, especially in the criminal field x x
x. The press does not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of sensational criminal cases. The
state of the art of our communication system brings news as hey happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair and impartial
judge is not that of a hermit who is out of touch with the world. We have not installed
the jury system whose members are overly protected from publicity lest they lost their
impartiality. x x x x x x x x x. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a
litigation. Their mere exposure to publications and publicity stunts does not per
se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial
judge due to the barrage of publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of
possibility of prejudice and adopted the test of actual prejudice as we ruled 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 barrage of
publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the
case does not prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity which is incapable of change even by evidence presented during
the trial. Appellant has the burden to prove this actual bias and he has not discharged
the burden.
Petitioner keeps on pounding on the adverse publicity against him but fails to prove
how the impartiality of the panel of investigators from the Office of the Ombudsman has

been infected by it. As we held before and we hold it again, petitioner has completely failed to
adduce any proof of actual prejudice developed by the members of the Panel of
Investigators. This fact must be established by clear and convincing evidence and cannot be left
to loose surmises and conjectures. In fact, petitioner did not even identify the members of the
Panel of Investigators.We cannot replace this test of actual prejudice with the rule of res ipsa
loquitur as suggested by the petitioner. The latter rule assumes that an injury (i.e., prejudicial
publicity) has been suffered and then shifts the burden to the panel of investigators to prove that
the impartiality of its members has been affected by said publicity. Such a rule will overturn our
case law that pervasive publicity is not per se prejudicial to the right of an accused to fair
trial. The cases are not wanting where an accused has been acquitted despite pervasive publicity.
[55]
For this reason, we continue to hold that it is not enough for petitioner to conjure possibility of
prejudice but must prove actual prejudice on the part of his investigators for the Court to sustain his
plea. It is plain that petitioner has failed to do so.
Petitioner agains suggests that the Court should order a 2-month cooling off period to allow
passions to subside and hopefully the alleged prejudicial publicity against him would die
down.We regret not to acquiesce to the proposal. There is no assurance that the so called 2month cooling off period will achieve its purpose. The investigation of the petitioner is a natural
media event.It is the first time in our history that a President will be investigated by the Office of
the Ombudsman for alleged commission of heinous crimes while a sitting President. His
investigation will even be monitored by the foreign press all over the world in view of its legal
and historic significance. In other words, petitioner cannot avoid the kleiglight of publicity. But
what is important for the petitioner is that his constitutional rights are not violated in the
process of investigation. For this reason, we have warned the respondent Ombudsman in our
Decision to conduct petitioners preliminary investigation in a circus-free atmosphere. Petitioner
is represented by brilliant legal minds who can protect his right as an accused.
VI

Recusation

Finally, petitioner prays that the members of this Honorable Court who went to EDSA put
on record who they were and consider recusing or inhibiting themselves, particularly those who
had ex-parte contacts with those exerting pressure on this Honorable Court, as mentioned in our
Motion of March 9, 2001, given the need for the cold neutrality of impartial judges.[56]
We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12)
members of the Court who merely accepted the invitation of the respondent Arroyo to attend her
oath taking. As mere spectators of a historic event, said members of the Court did not
prejudge the legal basis of the claim of respondent Arroyo to the presidency at the time she took
her oath.Indeed, the Court in its en banc resolution on January 22, 2001, the first working day
after respondent Arroyo took her oath as President, held in Administrative Matter No. 01-1-05
SC, to wit:

A.M. No. 01-1-05-SC In re: Request for Vice President Gloria Macapagal-Arroyo to
Take Her Oath of Office as President of the Republic of the Philippines before the
Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo
to be sworn in as President of the Republic of the Philippines, addressed to the Chief
Justice and confirmed by a letter to the Court, dated January 20, 2001, which request
was treated as an administrative matter, the court Resolved unanimously to confirm
the authority given by the twelve (12) members of the Court then present to the Chief
Justice on January 20, 2001 to administer the oath of office to Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may
be filed by a proper party.
The above resolution was unanimously passed by the 15 members of the Court. It should be
clear from the resolution that the Court did not treat the letter of respondent Arroyo to be
administered the oath by Chief Justice Davide, Jr., as a case but as an administrative matter. If it
were considered as a case, then petitioner has reason to fear that the Court has
predetermined the legitimacy of the claim of respondent Arroyo to the presidency. To dispel
the erroneous notion, the Court precisely treated the letter as an administrative matter and
emphasized that it was without prejudice to the disposition of any justiciable case that may
be filed by a proper party. In further clarification, the Court on February 20, 2001
issuedanother resolution to inform the parties and the public that it xxx did not issue a
resolution on January 20, 2001 declaring the office of the President vacant and that neither did
the Chief Justice issue a press statement justifying the alleged resolution. Thus, there is no
reason for petitioner to request for the said twelve (12) justices to recuse themselves. To be
sure, a motion to inhibit filed by a party after losing his case is suspect and is regarded with
general disfavor.
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the
case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to
the deprivation of the judicial power of the court itself. It affects the very heart of judicial
independence.[57] The proposed mass disqualification, if sanctioned and ordered, would leave the
Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices.[58]
IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and
his Omnibus Motion in G.R. No. 146738 are DENIED for lack of merit.
SO ORDERED.
Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., no part for reason given in open court and in the extended explanation.
Vitug, J., see separate concurring opinion.
Mendoza, J., see concurring opinion.

Kapunan, J., concurs on the result but strongly reiterate my separate opinion in the case.
Ynares-Santiago, J., concurs in the result but maintains separate opinion in the main
Decision.
Sandoval-Gutierrez, J., concurs in the result subject to separate opinion in the main
Decision.
Panganiban, J., no part see Extended Explanation of Inhibition prom. on March 8, 2001.

Decision, p. 35.

[2]

63C Am Jur 2d Public Officers and Employees, section 158.

[3]

See e.g., Comment of respondents de Vera, Funa and Capulong, p. 26; Rollo, Vol II. p. 204: Memorandum of
respondent Capulong Rollo, Vol. III, pp. 661, et seq.
[4]

See paragraph 6.1 on p. 5 of petitioners Second Supplemental Reply Memorandum.

[5]

Id., see paragraph 7 on pp. 7-8.

[6]

The myth of hearsay is that no one understands it, and students and practicing lawyers always make mistakes
about it. Best, Evidence, 59 (3rd ed., p. 59, 1999).
[7]

Francisco, Evidence, 513 citing 33 CJS 919.

[8]

Mueller and Kirkpatrick, Evidence under the Rules 116-117 (2nd ed., 1993); McCormick Evidence 93-94

[9]

See, generally, Swift, One Hundred Years of Evidence Law Reform: Thayers Triumph, 88 Cal. L. Rev. No. 6,
2437-2476 (2000). Swifts thesis is that the view of Thayer and other major twentieth century reformers advocating
increased discretion of trial judges to admit or exclude evidence has prevailed.
[10]

Evidence, Cases and Materials 473-474 (9th ed.). As well put by author Best, supra, p. 87, the supreme irony of
the hearsay doctrine is that a vast amount of hearsay is admissible at common law and under the Federal Rules. Our
hearsay rules are American in origin.
[11]

Admissions of a party should not be confused with declarations against interest, judicial admission and
confessions.
Admission distinguished from declaration against interest. An admission is distinguishable from a declaration
against interest in several respects. The admission is primary evidence and is receivable, although the declarant is
available as a witness; it is competent only when the declarant, or someone identified in legal interest with him, is a
party to the action; and need not have been considered by the decalrant as opposed to his interest at the time when it
was made. The declaration against interest is in the nature of secondary evidence, receivable only when the declarant
is unavailable as a witness; it is competent in any action to which it is relevant, although the declarant is not a party
to, or in privity with, any party to the action; and it must have been, when made, to the knowledge of the declarant,
against his obvious and real interest. (VIII Francisco, Evidence, 304 [1997 ed.])
Admission distinguished from confession.- The term admission is distinguished from that of confession. The former
is applied to civil transactions and to matters of fact in criminal cases not involving criminal intent, the latter to
acknowledgements of guilt in crimnal cases. (id., p. 303)
Judicial and extra-judicial admission defined.- A judicial admission is one so made in pleadings filed or in the
progress of a trial as to dispense with the introduction of evidence otherwise necessary to dispense with some rules
of practice necessary to be observed and complied with.
Extra-judicial admission is one made out of court.

The most important distinction between judicial and other admissions, is that strictly, judicial admissions are
conclusive upon the party making them, while other admissions are, as a rule and where the elements of estoppel are
not present, disputable. (id., p. 90)
[12]

Herrera, Evidence, 315-316.

[13]

Best, op cit., p. 90.

[14]

Herrera, op cit., p. 371, citing 2 Jones Sec. 13-28.

[15]

Evidence Under the Rules, 216 (2nd ed., 1993).

[16]

Section 32, Rule 130 provides: An act or declaration made in the presence and within the hearing or observation
of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if
not true, and when proper and possible for him to do so, may be given in evidence against him.
[17]

Phil. Daily Inquirer, February 5, 2001, p. A6.

[18]

Id., February 6, 2001, p. 1; Rollo, Vol. II, p. 250.

[19]

Section 29, Rule 130 states: the act or declaration of a partner or agent of the party within the scope of his
authority and during the existence of the partnership or agency, may be given in evidence against such party after the
partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other person jointly interested with the party.
[20]

Jones on Evidence, S. 944, p. 1741.

[21]

Moran, Evidence3, 298.

[22]

Jones, op cit., S. 1088, p. 2010.

[23]

Omnibus Motion, pp. 24-25, footnotes omitted.

[24]

Wigmore on Evidence, sec. 1191, p. 334.

[25]

Francisco, The Revised Rules of Court in the Philippines: Evidence 139 (1999), citing I Jones on Evidence, 390391.
[26]

Id., citing People v. Stuckrath, 64 Cal. App. 84, 220, p. 433; see also Suddayao, et al.v. Agatep, et al., 46 Off. Gaz.
1119.
[27]

Francisco, supra, p.129.

[28]

236 SCRA 505 (1994).

[29]

See Decision, p. 41.

[30]

See Petition in G.R. No. 146738, p. 7, further stating that no one apparently was around or willing to receive the
letter to the Senate President earlier.
[31]

See Annex A-1, Petition in G.R. No. 146738.

[32]

Decision, p. 12.

[33]

Decision, p. 13.

[34]

Ibid.

[35]

Decision, p. 12.

[36]

Omnibus Motion, p. 37.

[37]

Id., pp. 38-39.

[38]

Id., p. 39.

[39]

Section 4, Article VII of the Constitution states in part: The Supreme Court sitting en banc, shall be the sole judge
of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose.
[40]

Motion for Reconsideration, p. 5.

[41]

Id., p. 5, citing Bernas, The 1987 Constitution of the Philippines: A Commentary, 1996, p. 532.

[42]

Id., p. 5, citing People v. Diaz, 94 Phil. 714 and People v. Robles, 105 Phil. 1016.

[43]

Tecson v. Sandiganbayan, 318 SCRA 80 (1999).

[44]

Bernas, The Constitution of the Republic of the Philippines: A Commentary, 1987, p. 470.

[45]

102 SCRA 861 (1981), citing 4 Morans Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela v.
Lutero, 88 Phil. 299, 307 and People v. Diaz, 94 Phil. 714, 717.
[46]

People v. Leviste, 255 SCRA 238 (1996), citing People v. Tampal, 244 SCRA 202 (1995).

[47]

Tai Lim v. Court of Appeals, 317 SCRA 521 (1999).

[48]

People v. Quizada, 160 SCRA 516; Sta. Rita v. Court of Appeals, 247 SCRA 484; People v. Leviste, supra.

[49]

Motion for Reconsideration, GR Nos. 146710-15, p. 17.

[50]

Topacio Nueno, et al. vs. Angeles, et al., 76 Phil. 12, 21- 22.

[51]

Motion for Reconsideration, p. 27.

[52]

57B Am Jur 2d 493 (1989).

[53]

Ibid., pp. 502-503.

[54]

249 SCRA 54 (1995); see Martelino et al. v. Alejandro, et al., 32 SCRA 106 (1970); Webb v. de Leon, etc., 247
SCRA 652 (1995); Larranaga v. CA, et al., 289 SCRA 581 (1998).
[55]

People v. Ritter, 194 SCRA 690 (1991).

[56]

Omnibus Motion, p.55.

[57]

Vargas v. Rilloraza, et al., 80 Phil. 297 (1948).

[58]

Abbas, et al., v. Senate Electoral Tribunal, 166 SCRA 651 (1988).

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 160261

November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,


NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC.,
ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA,
THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.

FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZONABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-inintervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO
LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS
BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY,
SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO
AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON,

MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO,


CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO,
FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG,
ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES,
AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO,
CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC,
GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI
LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE
VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM
MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF
PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA
LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER
BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO,
JR., AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C.
REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY
AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x

G.R. No. 160310 November 10, 2003


LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON
MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME
BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE
RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS,
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH
LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U.
SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND
EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR
OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A
TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS
OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE

PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.


DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE
PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ,
GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON,
ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROSARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF
OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS
REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO
SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF
JUSTICE HILARIO G. DAVIDE, JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF
THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE
HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.
x---------------------------------------------------------x

G.R. No. 160392 November 10, 2003


VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE
SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G.
DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER,
HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.
MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY.
MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES,
INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS
G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO
FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF
THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS
HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS
SENATE PRESIDENT,respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly
irreconcilable it may appear to be, over the determination by the independent branches of

government of the nature, scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one such
today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal
courses and not a few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy subject of
the instant petitions whether the filing of the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political question has resulted in a political
crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of
conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first instance,
that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in adherence to, not departure
from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative, executive or
judicial branches of government by no means prescribes for absolute autonomy in the discharge by
each of that part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has been carefully calibrated
by the Constitution to temper the official acts of each of these three branches must be given effect
without destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican government, intended as they are to
insure that governmental power is wielded only for the good of the people, mandate a relationship of
interdependence and coordination among these branches where the delicate functions of enacting,
interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by
what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public

officers and employees may be removed from office as provided by law, but not by
impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the concurrence of two-thirds of all the Members
of the Senate.
(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House
Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between these two
Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES

12TH CONGRESS NEW RULES

RULE II

RULE V

INITIATING IMPEACHMENT

BAR AGAINST INITIATION OF


IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL

Section 2. Mode of Initiating


Impeachment. Impeachment shall
be initiated only by a verified
complaint for impeachment filed by
any Member of the House of
Representatives or by any citizen
upon a resolution of endorsement by
any Member thereof or by a verified
complaint or resolution of
impeachment filed by at least onethird (1/3) of all the Members of the
House.

Section 16. Impeachment


Proceedings Deemed Initiated.
In cases where a Member of the
House files a verified complaint of
impeachment or a citizen files a
verified complaint that is endorsed
by a Member of the House through
a resolution of endorsement
against an impeachable officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution against
such official, as the case may be,
is sufficient in substance, or on the
date the House votes to overturn
or affirm the finding of the said
Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified
complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.

RULE V
BAR AGAINST IMPEACHMENT

Section 17. Bar Against


Initiation Of Impeachment
Proceedings. Within a period of
one (1) year from the date
impeachment proceedings are

Section 14. Scope of Bar. No


impeachment proceedings shall be
initiated against the same official
more than once within the period of
one (1) year.

deemed initiated as provided in


Section 16 hereof, no
impeachment proceedings, as
such, can be initiated against the
same official. (Italics in the original;
emphasis and underscoring
supplied)

On July 22, 2002, the House of Representatives adopted a Resolution, 2 sponsored by


Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an
investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief
Justice of the Supreme Court of the Judiciary Development Fund (JDF)." 3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices 5 of
this Court for "culpable violation of the Constitution, betrayal of the public trust and other high
crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and
Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on August 5,
20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session days from
receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint
was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in
substance.10 To date, the Committee Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October
23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment
complaint11 was filed with the Secretary General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur)
against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry
initiated by above-mentioned House Resolution. This second impeachment complaint was
accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all
the Members of the House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions
contend that the filing of the second impeachment complaint is unconstitutional as it violates the
provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be
initiated against the same official more than once within a period of one year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and
arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th
Congress,"14 posits that his right to bring an impeachment complaint against then Ombudsman
Aniano Desierto had been violated due to the capricious and arbitrary changes in the House
Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives
and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be
declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to
return the second impeachment complaint and/or strike it off the records of the House of
Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this
Court permanently enjoin respondent House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging
that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate;
and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President
Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event
that the Senate has accepted the same, from proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition
for Prohibition involves public interest as it involves the use of public funds necessary to conduct the
impeachment trial on the second impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings on said second impeachment
complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he
has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v.
PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal
profession, pray in their petition for Prohibition for an order prohibiting respondent House of
Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of
Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M.
Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in
ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be
declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in
their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the

House Resolution endorsing the second impeachment complaint as well as all issuances emanating
therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President
from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and
issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from
conducting any proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine
Bar, both allege in their petition, which does not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the
House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be
declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo
N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order
and Permanent Injunction to enjoin the House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the
Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and
Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of Representatives be
permanently enjoined from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for
Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v.
Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a
writ prohibiting respondents House of Representatives and the Senate from conducting further
proceedings on the second impeachment complaint and that this Court declare as unconstitutional
the second impeachment complaint and the acts of respondent House of Representatives in
interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in
his petition for Prohibition are of national and transcendental significance and that as an official of
the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in discharging their duties in accordance with the
Constitution, prays for the issuance of a writ prohibiting the House of Representatives from
transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or
giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition
that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint,
were "absolutely without any legal power to do so, as they acted without jurisdiction as far as the
Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the
(JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as
professors of law they have an abiding interest in the subject matter of their petition for Certiorari and

Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of
their students," pray that the House of Representatives be enjoined from endorsing and the Senate
from trying the Articles of Impeachment and that the second impeachment complaint be declared
null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in
his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that
the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing
of the second impeachment complaint involve matters of transcendental importance, prays in its
petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings
arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited
from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be
prohibited from accepting the Articles of Impeachment and from conducting any proceedings
thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their
petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution
of endorsement and impeachment by the respondent House of Representatives be declared null and
void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting
any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the
same, that they be prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary Restraining
Order and/or preliminary injunction to prevent the House of Representatives from transmitting the
Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition
bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28,
2001 House Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292
alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the
Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a
direct violation of the constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion was put
forth that the second impeachment complaint be formally transmitted to the Senate, but it was not
carried because the House of Representatives adjourned for lack of quorum, 19 and as reflected
above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary
injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse
themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003,
resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the

Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of
November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and
(d) appointed distinguished legal experts as amici curiae.20 In addition, this Court called on
petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for
and in their behalf to refrain from committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De
Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation
asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated duty to initiate impeachment
cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene
(Ex Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for lack
of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole
power, authority and jurisdiction of the Senate as the impeachment court to try and decide
impeachment cases, including the one where the Chief Justice is the respondent, be recognized and
upheld pursuant to the provisions of Article XI of the Constitution." 22
Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate
them with the earlier consolidated petitions; (b) require respondents to file their comment not later
than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon,
filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and
have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable
issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment
court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the
principal issues raised by the petitions pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the
matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No.
160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in
Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans
Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in
G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003,
to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it;
on what issues and at what time; and whether it should be exercised by this Court at this
time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of
Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of the
reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and
novel issue of whether or not the power of judicial review extends to those arising from impeachment
proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial
review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be
discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the government in Section
1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government. (Emphasis
supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel
in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935
Constitution whose provisions, unlike the present Constitution, did not contain the present provision
in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed:

x x x In times of social disquietude or political excitement, the great landmarks of the


Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility,
but as much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living constitution. In the United States
where no express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development there,
has been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution. Even
then, this power of judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption
of constitutionality to legislative enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the determination of actual cases
and controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the government. 24(Italics
in the original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual controversies involving rights which are legally
demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not explicitly conferred upon
the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period
of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v.
Madison27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law
of the land, the constitution itself is first mentioned; and not the laws of the United States
generally, but those only which shall be made in pursuance of the constitution, have that
rank.
Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28(Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution,
the power of judicial review was exercised by our courts to invalidate constitutionally infirm
acts.29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente
V. Mendoza,30 the executive and legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of
the delicate system of checks and balances which, together with the corollary principle of separation
of powers, forms the bedrock of our republican form of government and insures that its vast powers
are utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of government. It
obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction, and
is supreme within its own sphere. But it does not follow from the fact that the three powers
are to be kept separate and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in the workings of
the various departments of the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.32 (Emphasis and underscoring
supplied)
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them." 33 To him, "[j]udicial review is

the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in
that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in
the following excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense at
all, the solicitor general set up the defense of political questions and got away with it.
As a consequence, certain principles concerning particularly the writ of habeas corpus, that
is, the authority of courts to order the release of political detainees, and other matters related
to the operation and effect of martial law failed because the government set up the defense
of political question. And the Supreme Court said: "Well, since it is political, we have no
authority to pass upon it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely request an encroachment
upon the rights of the people, but it, in effect, encouraged further violations thereof
during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the judiciary
is the final arbiter on the question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously
as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters
of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original; emphasis and underscoring
supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn
to the Constitution itself which employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc.
v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique Fernando,
declared:
We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
be attained. They are to be given theirordinary meaning except where technical terms
are employed in which case the significance thus attached to them prevails. As the
Constitution is not primarily a lawyer's document, it being essential for the rule of law to
obtain that it should ever be present in the people's consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus these are the cases where the need for construction is
reduced to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention underlying the provision
under consideration. Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be examined in the light of the
history of the times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.39 (Emphasis and
underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice
Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental principle
of constitutional construction that the intent of the framers of the organic law and of
the people adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of the
framers and of the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.41 (Emphasis and underscoring supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated a
provision of our Constitution merely for the benefit of one person without considering
that it could also affect others. When they adopted subsection 2, they permitted, if not
willed, that said provision should function to the full extent of its substance and its
terms, not by itself alone, but in conjunction with all other provisions of that great
document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all
the provisions bearing upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the instrument. Sections bearing
on a particular subject should be considered and interpreted together as to effectuate
the whole purpose of the Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.45(Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In
still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention "are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but they give us no light as
to the views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We think
it safer to construe the constitution from what appears upon its face." The proper
interpretation therefore depends more on how it was understood by the people
adopting it than in the framers's understanding thereof.46 (Emphasis and underscoring
supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential
application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a
political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)

necessarily includes the Senate's power to determine constitutional questions relative to


impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel
rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United
States.50 Thus, they contend that the exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to
try impeachments and to try crimes; it disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary; and it would create a lack of finality and
difficulty in fashioning relief.51 Respondents likewise point to deliberations on the US Constitution to
show the intent to isolate judicial power of review in cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and
American authorities cannot be credited to support the proposition that the Senate's "sole power to
try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a
textually demonstrable constitutional commitment of all issues pertaining to impeachment to the
legislature, to the total exclusion of the power of judicial review to check and restrain any grave
abuse of the impeachment process. Nor can it reasonably support the interpretation that it
necessarily confers upon the Senate the inherently judicial power to determine constitutional
questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of dubious
application for these are no longer controlling within our jurisdiction and have only limited persuasive
merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign
jurisprudence some of which are hardly applicable because they have been dictated by different
constitutional settings and needs."53 Indeed, although the Philippine Constitution can trace its origins
to that of the United States, their paths of development have long since diverged. In the colorful
words of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S.
Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it
was given an expanded definition to include the power to correct any grave abuse of discretion on
the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with
respect to the power of the House of Representatives over impeachment proceedings. While the
U.S. Constitution bestows sole power of impeachment to the House of Representatives without
limitation,54 our Constitution, though vesting in the House of Representatives the exclusive power to
initiate impeachment cases,55 provides for several limitations to the exercise of such power as
embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of
filing, required vote to impeach, and the one year bar on the impeachment of one and the same
official.
Respondents are also of the view that judicial review of impeachments undermines their finality and
may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to
exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to
the judgment of the people expressed legislatively, recognizing full well the perils of judicial
willfulness and pride."56

But did not the people also express their will when they instituted the above-mentioned safeguards
in the Constitution? This shows that the Constitution did not intend to leave the matter of
impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or
in the language of Baker v. Carr,57"judicially discoverable standards" for determining the validity of
the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of
the argument that the impeachment power is beyond the scope of judicial review, are not in point.
These cases concern the denial of petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review over
congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the
power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation
of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives.
In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it
contravened the Constitution, it held that the petition raises a justiciable controversy and that when
an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this
Court declared null and void a resolution of the House of Representatives withdrawing the
nomination, and rescinding the election, of a congressman as a member of the House Electoral
Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held
that the resolution of whether the House representation in the Commission on Appointments was
based on proportional representation of the political parties as provided in Section 18, Article VI of
the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative
power is vested exclusively in Congress, this does not detract from the power of the courts to pass
upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled that
confirmation by the National Assembly of the election of any member, irrespective of whether his
election is contested, is not essential before such member-elect may discharge the duties and enjoy
the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the exercise of judicial review over
impeachment proceedings would upset the system of checks and balances. Verily, the Constitution
is to be interpreted as a whole and "one section is not to be allowed to defeat another." 67 Both are
integral components of the calibrated system of independence and interdependence that insures
that no branch of government act beyond the powers assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost
all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case
or controversy calling for the exercise of judicial power; (2) the person challenging the act must have
"standing" to challenge; he must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction

could only lead to dialectics and barren legal questions and to sterile conclusions unrelated
to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative departments of the
government.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that
is being challenged. The gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have
standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus
curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court
had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases
involving paramount public interest70 and transcendental importance,71 and that procedural matters
are subordinate to the need to determine whether or not the other branches of the government have
kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of
the same opinion, citing transcendental importance and the well-entrenched rule exception that,
when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in
the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this
Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on standing,
for the former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In
view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling
in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it from real
party-in-interest.
The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a particular
plaintiff is the real party in interest or has capacity to sue. Although all three requirements are
directed towards ensuring that only certain parties can maintain an action, standing
restrictions require a partial consideration of the merits, as well as broader policy concerns
relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits are brought
not by parties who have been personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest.
Hence the question in standing is whether such parties have "alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens

the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether he is "the party who
would be benefited or injured by the judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts
of the House of Representatives, none of the petitioners before us asserts a violation of the personal
rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights
as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar
and of the legal profession which were supposedly violated by the alleged unconstitutional acts of
the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.77 In fine, when the proceeding involves the assertion of a
public right,78 the mere fact that he is a citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally
disbursed, or that public money is being deflected to any improper purpose, or that there is a
wastage of public funds through the enforcement of an invalid or unconstitutional law.79 Before he
can invoke the power of judicial review, however, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a
direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient
that he has merely a general interest common to all members of the public. 80
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation that
any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the
Chief Justice will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official action which he claims
infringes his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in
his office.83
While an association has legal personality to represent its members,84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests, 85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty
to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it
with standing. Its interest is too general. It is shared by other groups and the whole citizenry.
However, a reading of the petitions shows that it has advanced constitutional issues which deserve

the attention of this Court in view of their seriousness, novelty and weight as precedents. 86 It,
therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by
it.
In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned 87 to enable the court to
deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether favorable
or unfavorable to the class, is, under the res judicata principle, binding on all members of the class
whether or not they were before the court.89Where it clearly appears that not all interests can be
sufficiently represented as shown by the divergent issues raised in the numerous petitions before
this Court, G.R. No. 160365 as a class suit ought to fail. Since petitionersadditionally allege standing
as citizens and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following instructive
determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1)
the character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and specific
interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied
that the issues raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental significance to the people, as when
the issues raised are of paramount importance to the public.91 Such liberality does not, however,
mean that the requirement that a party should have an interest in the matter is totally eliminated. A
party must, at the very least, still plead the existence of such interest, it not being one of which
courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any interest in the case.
He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof. While intervention is
not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy
the requirements of the law authorizing intervention. 92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the
same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al.
has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene
and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join
petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that
"they will suffer if this insidious scheme of the minority members of the House of Representatives is
successful," this Court found the requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans

Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise
the additional issue of whether or not the second impeachment complaint against the Chief Justice is
valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and
World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in
litigation the respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making
of record and arguing a point of view that differs with Senate President Drilon's. He alleges that
submitting to this Court's jurisdiction as the Senate President does will undermine the independence
of the Senate which will sit as an impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal
interest in the matter in litigation, he being a member of Congress against which the herein petitions
are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at
hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts
an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as
set forth in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the expenditure of public moneys,
nowhere in their Petition do said petitioners allege that their tax money is "being extracted
and spent in violation of specific constitutional protection against abuses of legislative
power," or that there is a misapplication of such funds by respondent COMELEC, or that
public money is being deflected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners
will result in illegal disbursement of public funds or in public money being deflected to any improper
purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with
standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished
or performed by either branch before a court may come into the picture." 96 Only then may the courts
pass on the validity of what was done, if and when the latter is challenged in an appropriate legal
proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules
adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts
having been carried out, i.e., the second impeachment complaint had been filed with the House of
Representatives and the 2001 Rules have already been already promulgated and enforced, the
prerequisite that the alleged unconstitutional act should be accomplished and performed before suit,
as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiaeformer Senate President Jovito R. Salonga opines that there may be no

urgent need for this Court to render a decision at this time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all remedies in the House and Senate should first
be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this
Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules
provide for an opportunity for members to raise constitutional questions themselves when the
Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean
maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can
raise the issue of their constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity.
Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint
since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the
Constitution97 and, therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither the
House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the
issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power
is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution.
Remedy cannot be sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government." It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.99 (Italics in the
original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this
Court vacillated on its stance of taking cognizance of cases which involved political questions. In
some cases, this Court hid behind the cover of the political question doctrine and refused to exercise
its power of judicial review.100 In other cases, however, despite the seeming political nature of the
therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed
limits on powers or functions conferred upon political bodies.101 Even in the landmark 1988 case
of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was
ratified, hence, in force, this Court shunted the political question doctrine and took cognizance
thereof. Ratification by the people of a Constitution is a political question, it being a question decided
by the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when

he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the
judiciary is the weakest among the three major branches of the service. Since the legislature holds
the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions
or commands except the power of reason and appeal to conscience which, after all, reflects the will
of God, and is the most powerful of all other powers without exception. x x x And so, with the body's
indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense at
all, the solicitor general set up the defense of political questions and got away with it.
As a consequence, certain principles concerning particularly the writ of habeas
corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said: "Well,
since it is political, we have no authority to pass upon it." The Committee on the Judiciary
feels that this was not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in effect, encouraged
further violations thereof during the martial law regime. I am sure the members of the
Bar are familiar with this situation. But for the benefit of the Members of the Commission who
are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973
on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was
announced on September 22, although the proclamation was dated September 21. The
obvious reason for the delay in its publication was that the administration had apprehended
and detained prominent newsmen on September 21. So that when martial law was
announced on September 22, the media hardly published anything about it. In fact, the
media could not publish any story not only because our main writers were already
incarcerated, but also because those who succeeded them in their jobs were under mortal
threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention
had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it
had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens

of them, were picked up. One of them was our very own colleague, Commissioner Calderon.
So, the unfinished draft of the Constitution was taken over by representatives of
Malacaang. In 17 days, they finished what the delegates to the 1971 Constitutional
Convention had been unable to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1, 1972, whereupon the
President issued a decree calling a plebiscite which suspended the operation of some
provisions in the martial law decree which prohibited discussions, much less public
discussions of certain matters of public concern. The purpose was presumably to allow a
free discussion on the draft of the Constitution on which a plebiscite was to be held
sometime in January 1973. If I may use a word famous by our colleague, Commissioner
Ople, during the interregnum, however, the draft of the Constitution was analyzed and
criticized with such a telling effect that Malacaang felt the danger of its approval. So, the
President suspended indefinitely the holding of the plebiscite and announced that he would
consult the people in a referendum to be held from January 10 to January 15. But the
questions to be submitted in the referendum were not announced until the eve of its
scheduled beginning, under the supposed supervision not of the Commission on Elections,
but of what was then designated as "citizens assemblies or barangays." Thus the barangays
came into existence. The questions to be propounded were released with proposed answers
thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given
in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a
motion was filed with the Supreme Court praying that the holding of the referendum be
suspended. When the motion was being heard before the Supreme Court, the Minister of
Justice delivered to the Court a proclamation of the President declaring that the new
Constitution was already in force because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the departure of the Minister of
Justice, I proceeded to the session room where the case was being heard. I then informed
the Court and the parties the presidential proclamation declaring that the 1973 Constitution
had been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void.
The main defense put up by the government was that the issue was a political question and
that the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of
the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference between
a referendum and a plebiscite. But another group of justices upheld the defense that
the issue was a political question. Whereupon, they dismissed the case. This is not
the only major case in which the plea of "political question" was set up. There have
been a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was clearly
justiciable.

xxx
x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable. There are
rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided
case, a husband complained that his wife was unwilling to perform her duties as a wife. The
Court said: "We can tell your wife what her duties as such are and that she is bound to
comply with them, but we cannot force her physically to discharge her main marital duty to
her husband. There are some rights guaranteed by law, but they are so personal that to
enforce them by actual compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which
are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another important
function. The powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is supreme
within its own sphere and independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the judiciary
is the final arbiter on the question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously
as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters
of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that such
matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may have an initial
food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified
the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is
not vested in the Supreme Court alone but also in other lower courts as may be
created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political
questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where
there is a question as to whether the government had authority or had abused its
authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a
political question. Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court
according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political question
doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting
to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with
the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define what is judicial power.
But the Gentleman will notice it says, "judicial power includes" and the reason being
that the definition that we might make may not cover all possible areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the political
question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that
judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere
specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to
clarify, however, that Section 1, Article VIII was not intended to do away with "truly political
questions." From this clarification it is gathered that there are two species of political questions: (1)
"truly political questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the
Constitution, courts can review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court
has in fact in a number of cases taken jurisdiction over questions which are not truly political
following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide. 106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction
to delimit constitutional boundaries has been given to this Court. It cannot abdicate
that obligation mandated by the 1987 Constitution, although said provision by no
means does away with the applicability of the principle in appropriate
cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and nonjusticiable political questions, however. Identification of these two species of political questions may
be problematic. There has been no clear standard. The American case of Baker v. Carr111 attempts to
provide some:
x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for questioning adherence to a political decision already made; or thepotentiality of
embarrassment from multifarious pronouncements by various departments on one
question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially
discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion. These standards are not
separate and distinct concepts but are interrelated to each in that the presence of one strengthens
the conclusion that the others are also present.

The problem in applying the foregoing standards is that the American concept of judicial review is
radically different from our current concept, for Section 1, Article VIII of the Constitution provides our
courts with far less discretion in determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such limits.
This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section 3(4),
Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal
autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th
Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.
The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require this
Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of
these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an
examination of the records of the 1986 Constitutional Commission shows that the framers could find
no better way to approximate the boundaries of betrayal of public trust and other high crimes than by
alluding to both positive and negative examples of both, without arriving at their clear cut definition or
even a standard therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable political
question which is beyond the scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a
governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission
on Elections,115 this Court held:

x x x It is a well-established rule that a court should not pass upon a constitutional question
and decide a law to be unconstitutional or invalid, unless such question is raised by the
parties and that when it is raised,if the record also presents some other ground upon
which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a
decision upon such question will be unavoidable.116 [Emphasis and underscoring
supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court
invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due
process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into such
a question are first satisfied. Thus, there must be an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination, the constitutional question must
have been opportunely raised by the proper party, and the resolution of the question is
unavoidably necessary to the decision of the case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is
the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome of
this controversy could possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by the related cannon of
adjudication that "the court should not form a rule of constitutional law broader than is required by
the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution 120 calling for a
legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise
be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of
legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the
constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of
the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this
Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is
too far removed from the issue of the validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law
touching on the separate and distinct matter of legislative inquiries in general, which would thus be
broader than is required by the facts of these consolidated cases. This opinion is further
strengthened by the fact that said petitioners have raised other grounds in support of their petition
which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already been
enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of
the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be respected." It follows then that the right
rights of persons under the Bill of Rights must be respected, including the right to due
process and the right not be compelled to testify against one's self. 123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the
original petition of petitioners Candelaria, et. al., introduce the new argument that since the second
impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and
Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of
the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least
one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the requisites for the application of the aforementioned section in that the "verified complaint or resolution of impeachment" was not filed "by at
least one-third of all the Members of the House." With the exception of Representatives Teodoro and
Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a
"Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of Endorsement
which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned
Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x" 124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said
second impeachment complaint to automatically become the Articles of Impeachment and for trial in
the Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at
least one-third of the Members of the House of Representatives. Not having complied with this
requirement, they concede that the second impeachment complaint should have been calendared
and referred to the House Committee on Justice under Section 3(2), Article XI of the
Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session days from
receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4),
Article XI of the Constitution to apply, there should be 76 or more representatives who signed and
verified the second impeachment complaint as complainants, signed and verified the signatories to a
resolution of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of the House of
Representatives as endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from at least one Member
whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the
scope of the constitutional issues to the provisions on impeachment, more compelling considerations
militate against its adoption as the lis mota or crux of the present controversy. Chief among this is
the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this
issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional
ground as the basis for deciding the instant consolidated petitions would not only render for naught
the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other
petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination of the
instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in
the petition of Candelaria, et. al., adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the
very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House
Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of
Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second
impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting
as an impeachment court, has the sole power to try and decide all cases of impeachment. Again,
this Court reiterates that the power of judicial review includes the power of review over justiciable
issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion
for the Court to not assume jurisdiction over the impeachment because all the Members thereof are
subject to impeachment."125 But this argument is very much like saying the Legislature has a moral
compulsion not to pass laws with penalty clauses because Members of the House of
Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction
be renounced as there is no other tribunal to which the controversy may be referred." 126 Otherwise,
this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More
than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant
petitions.127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is
a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a
dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it, it has
acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as
always, with detachment and fairness."129 After all, "by [his] appointment to the office, the public has
laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon
the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit
to render justice, to be unafraid to displease any person, interest or power and to be equipped with a
moral fiber strong enough to resist the temptations lurking in [his] office." 130
The duty to exercise the power of adjudication regardless of interest had already been settled in the
case ofAbbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent
Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof
from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were
interested parties to said case as respondents therein. This would have reduced the Tribunal's
membership to only its three Justices-Members whose disqualification was not sought, leaving them
to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting
in the Tribunal by any of his other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed mass disqualification, if sanctioned
and ordered, would leave the Tribunal no alternative but to abandon a duty that no other
court or body can perform, but which it cannot lawfully discharge if shorn of the participation
of its entire membership of Senators.
To our mind, this is the overriding consideration that the Tribunal be not prevented from
discharging a duty which it alone has the power to perform, the performance of which is in
the highest public interest as evidenced by its being expressly imposed by no less than the
fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution
could not have been unaware of the possibility of an election contest that would involve all
Senatorselect, six of whom would inevitably have to sit in judgment thereon. Indeed, such
possibility might surface again in the wake of the 1992 elections when once more, but for the
last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme
or mode for settling such unusual situations or for the substitution of Senators designated to
the Tribunal whose disqualification may be sought. Litigants in such situations must simply
place their trust and hopes of vindication in the fairness and sense of justice of the Members
of the Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral
Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said
Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels that his personal interests or
biases would stand in the way of an objective and impartial judgment. What we are merely
saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally
function as such, absent its entire membership of Senators and that no amendment of its
Rules can confer on the three Justices-Members alone the power of valid adjudication of a
senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short ofpro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is
the case with the Justices of this Court, the deprivation of his or their judicial power is
equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of
judicial independence. The proposed mass disqualification, if sanctioned and ordered, would
leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if
shorn of the participation of its entire membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its power of
judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary
proceeding, declining because to decide such questions 'is legitimate only in the last resort,
and as a necessity in the determination of real, earnest and vital controversy between
individuals. It never was the thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the constitutionality of the legislative
act.'
2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of
deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of.
This rule has found most varied application. Thus, if a case can be decided on either of two
grounds, one involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. Appeals from the highest
court of a state challenging its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an independent state
ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to
show that he is injured by its operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one who lacks a personal or property
right. Thus, the challenge by a public official interested only in the performance of his official
duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a
suit brought by a citizen who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was
not entertained although made by the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who
has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain
whether a construction of the statute is fairly possible by which the question may be avoided
(citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different
decisions of the United States Supreme Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial
review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility
that "judicial review of impeachments might also lead to embarrassing conflicts between the
Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating
and risk serious political instability at home and abroad if the judiciary countermanded the vote of
Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging
that failure of this Court to enforce its Resolution against Congress would result in the diminution of
its judicial authority and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is not regarded as
settled until the Supreme Court has passed upon the constitutionality of the act involved, the

judgment has not only juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the petitioner's prayer to nullify
an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way
or the other, itself constitutes a decision for the respondent and validation, or at least quasivalidation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not
enough votes either to grant the petitions, or to sustain respondent's claims," 140 the pre-existing
constitutional order was disrupted which paved the way for the establishment of the martial law
regime.
Such an argument by respondents and intervenor also presumes that the coordinate branches of the
government would behave in a lawless manner and not do their duty under the law to uphold the
Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches
of government will behave in a precipitate manner and risk social upheaval, violence, chaos and
anarchy by encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine in People v.
Veneracion, to wit:141
Obedience to the rule of law forms the bedrock of our system of justice. If [public officers],
under the guise of religious or political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system, [public officers]
are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor,"
resist encroachments by governments, political parties, or even the interference of their own
personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and
17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our
present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is
clear in that it is the House of Representatives, as a collective body, which has the exclusive power
to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can,
as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by
a verified complaint for impeachment by any member of the House of Representatives; or (2) by any
citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of
the House. Respondent House of Representatives concludes that the one year bar prohibiting the
initiation of impeachment proceedings against the same officials could not have been violated as the
impeachment complaint against Chief Justice Davide and seven Associate Justices had not been
initiated as the House of Representatives, acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory
construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during

the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus


curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at
which he added that the act of "initiating" included the act of taking initial action on the complaint,
dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the
Constitution means to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to
commence, or set going. As Webster's Third New International Dictionary of the English Language
concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice
Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the
instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts
consisting of a beginning, a middle and an end. The end is the transmittal of the articles of
impeachment to the Senate. The middle consists of those deliberative moments leading to
the formulation of the articles of impeachment. The beginning or the initiation is the filing of
the complaint and its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco
and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee
votes in favor of impeachment or when the House reverses a contrary vote of the
Committee. Note that the Rule does not say "impeachment proceedings" are initiated but
rather are "deemed initiated." The language is recognition that initiation happened earlier, but
by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis
and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the
law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive
provisions on impeachment, I understand there have been many proposals and, I think,
these would need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this body.
This is borne out of my experience as a member of the Committee on Justice, Human Rights
and Good Government which took charge of the last impeachment resolution filed before the
First Batasang Pambansa. For the information of the Committee, the resolution covers
several steps in the impeachment proceedings starting with initiation, action of the
Speaker committee action, calendaring of report, voting on the report, transmittal
referral to the Senate, trial and judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment on
the floor. The procedure, as I have pointed out earlier, was that the initiation starts with
the filing of the complaint. And what is actually done on the floor is that the committee
resolution containing the Articles of Impeachment is the one approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style, it appears
that the initiation starts on the floor. If we only have time, I could cite examples in the case of
the impeachment proceedings of President Richard Nixon wherein the Committee on the
Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to
the body, and it was the body who approved the resolution. It is not the body which
initiates it. It only approves or disapproves the resolution. So, on that score, probably
the Committee on Style could help in rearranging these words because we have to be very
technical about this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on
the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3
(3). My reconsideration will not at all affect the substance, but it is only in keeping with the
exact formulation of the Rules of the House of Representatives of the United States
regarding impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now read:
"A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override
its contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on
line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of
the House. I will mention again, Madam President, that my amendment will not vary the
substance in any way. It is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam President. 143 (Italics in
the original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiaebrief, Commissioner Maambong explained that "the obvious reason in deleting the
phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section
3 (3) was to settle and make it understood once and for all that the initiation of impeachment
proceedings starts with the filing of the complaint, and the vote of one-third of the House in a
resolution of impeachment does not initiate the impeachment proceedings which was already
initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the
Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who
was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article

XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an
action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in
the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that must
be decided by the Senate. Above-quoted first provision provides that the House, by a vote of onethird of all its members, can bring a case to the Senate. It is in that sense that the House has
"exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a
decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium,
means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle,
and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there
is the filing of a verified complaint either by a Member of the House of Representatives or by a
private citizen endorsed by a Member of the House of the Representatives; (2) there is the
processing of this complaint by the proper Committee which may either reject the complaint or
uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution
must be forwarded to the House for further processing; and (4) there is the processing of the same
complaint by the House of Representatives which either affirms a favorable resolution of the
Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one
third of all the Members upholds the complaint, Articles of Impeachment are prepared and
transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at
this point that an impeachable public official is successfully impeached. That is, he or she is
successfully charged with an impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end of the House proceeding and the beginning
of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the
House deliberates on 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 beginning. Rather, the proceeding is initiated or begins, when a verified complaint is
filed and referred to the Committee on Justice for action. This is the initiating step which triggers the
series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary toinitiate impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does not initiate impeachment proceeding

but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the present
Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action. By
his explanation, this interpretation is founded on the common understanding of the meaning of "to
initiate" which means to begin. He reminds that the Constitution is ratified by the people, both
ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning
into ordinary words and not abstruse meaning, they ratify words as they understand it and not as
sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to
the principle of reddendo singula singulisby equating "impeachment cases" with "impeachment
proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the
impeachment complaint coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and referral or endorsement of the
impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of
the members of the House of Representatives with the Secretary General of the House, the meaning
of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated,
another impeachment complaint may not be filed against the same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings
are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified
complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns
the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient
in substance or (3) by the filing or endorsement before the Secretary-General of the House of
Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the
members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give
the term "initiate" a meaning different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v.
Avelino147 wherein this Court stated that "their personal opinions (referring to Justices who were
delegates to the Constitution Convention) on the matter at issue expressed during this Court's our
deliberations stand on a different footing from the properly recorded utterances of debates and
proceedings." Further citing said case, he states that this Court likened the former members of the
Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent
spectators may know more about the real meaning because of the latter's balanced perspectives
and disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions. There are at present only
two members of this Court who participated in the 1986 Constitutional Commission Chief Justice
Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for
obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by

members of the Constitutional Commission, but has examined the records of the deliberations and
proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and
unequivocal that it and only it has the power to make and interpret its rules governing impeachment.
Its argument is premised on the assumption that Congress has absolute power to promulgate its
rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on
impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence,
these rules cannot contravene the very purpose of the Constitution which said rules were intended to
effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on
its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to either
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have the
power to alter or amend the meaning of the Constitution without need of referendum.
In Osmea v. Pendatun,149 this Court held that it is within the province of either House of Congress to
interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its
members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later
Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United
States v. Smith,151 declared that where the construction to be given to a rule affects persons other
than members of the Legislature, the question becomes judicial in nature. InArroyo v. De
Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for
this Court, held that while the Constitution empowers each house to determine its rules of
proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and
further that there should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained. It is only within these limitations
that all matters of method are open to the determination of the Legislature. In the same case

of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was
even more emphatic as he stressed that in the Philippine setting there is even more reason for
courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are nonjusticiable. Nor do I agree that we will trivialize the principle of separation of power if
we assume jurisdiction over he case at bar. Even in the United States, the principle of
separation of power is no longer an impregnable impediment against the interposition of
judicial power on cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the
issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may determine the rules of
its proceedings." It appears that in pursuance of this authority the House had, prior to that
day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be noted
by the clerk and recorded in the journal, and reported to the Speaker with the names of the
members voting, and be counted and announced in determining the presence of a quorum to
do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as to
the validity of this rule, and not what methods the Speaker may of his own motion resort to
for determining the presence of a quorum, nor what matters the Speaker or clerk may of their
own volition place upon the journal. Neither do the advantages or disadvantages, the
wisdom or folly, of such a rule present any matters for judicial consideration. With the courts
the question is only one of power. The Constitution empowers each house to determine
its rules of proceedings. It may not by its rules ignore constitutional restraints or
violate fundamental rights, and there should be a reasonable relation between the
mode or method of proceedings established by the rule and the result which is
sought to be attained. But within these limitations all matters of method are open to the
determination of the House, and it is no impeachment of the rule to say that some other way
would be better, more accurate, or even more just. It is no objection to the validity of a rule
that a different one has been prescribed and in force for a length of time. The power to make
rules is not one which once exercised is exhausted. It is a continuous power, always subject
to be exercised by the House, and within the limitations suggested, absolute and beyond the
challenge of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined by the
Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint;
(2) it did not violate any fundamental right; and (3) its method had a reasonable relationship
with the result sought to be attained. By examining Rule XV, the Court did not allow its
jurisdiction to be defeated by the mere invocation of the principle of separation of powers. 154

xxx
In the Philippine setting, there is a more compelling reason for courts to categorically
reject the political question defense when its interposition will cover up abuse of
power. For section 1, Article VIII of our Constitution was intentionally cobbled to
empower courts "x x x to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and was not granted to our courts
in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or
any foreign state constitution. The CONCOM granted this enormous power to our
courts in view of our experience under martial law where abusive exercises of state
power were shielded from judicial scrutiny by the misuse of the political question
doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the judiciary vis--vis the Executive and
the Legislative departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a mere power
which it can decline to exercise. Precisely to deter this disinclination, the Constitution
imposed it as a duty of this Court to strike down any act of a branch or instrumentality
of government or any of its officials done with grave abuse of discretion amounting to
lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the
checking powers of this Court against the other branches of government despite their more
democratic character, the President and the legislators being elected by the people. 156
xxx
The provision defining judicial power as including the 'duty of the courts of justice. . . to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis--vis the other branches of government. This provision was dictated
by our experience under martial law which taught us that a stronger and more independent
judiciary is needed to abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court from
passivity to activism. This transformation, dictated by our distinct experience as nation, is not
merely evolutionary but revolutionary.Under the 1935 and the 1973 Constitutions, this Court
approached constitutional violations by initially determining what it cannot do; under the
1987 Constitution, there is a shift in stress this Court is mandated to approach
constitutional violations not by finding out what it should not do but what
it must do. The Court must discharge this solemn duty by not resuscitating a past that
petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of our
power to review violations of the rules of the House. We will not be true to our trust as the
last bulwark against government abuses if we refuse to exercise this new power or if

we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the


judicial sword that has increasingly emboldened other branches of government to
denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly
Filipino and its interpretation should not be depreciated by undue reliance on inapplicable
foreign jurisprudence. In resolving the case at bar, the lessons of our own history should
provide us the light and not the experience of foreigners.157 (Italics in the original emphasis
and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that
this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment
Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue
whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus,
the US Supreme Court concluded that there was a textually demonstrable constitutional commitment
of a constitutional power to the House of Representatives. This reasoning does not hold with regard
to impeachment power of the Philippine House of Representatives since our Constitution, as earlier
enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that
impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the SecretaryGeneral of the House of Representatives of a verified complaint or a resolution of impeachment by
at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they
give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the impeachment complaint and
referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3
(5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official within a one year period following Article
XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that takes the
center stage of our individual and collective consciousness as a people with our characteristic flair
for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the

controversy over the Davide impeachment. For many of us, the past two weeks have proven to be
an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a
dialectical struggle to articulate what they respectively believe to be the correct position or view on
the issues involved. Passions had ran high as demonstrators, whether for or against the
impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to
air their voice on the matter. Various sectors of society - from the business, retired military, to the
academe and denominations of faith offered suggestions for a return to a state of normalcy in the
official relations of the governmental branches affected to obviate any perceived resulting instability
upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been constituted,
this Court was specifically asked, told, urged and argued to take no action of any kind and form with
respect to the prosecution by the House of Representatives of the impeachment complaint against
the subject respondent public official. When the present petitions were knocking so to speak at the
doorsteps of this Court, the same clamor for non-interference was made through what are now the
arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the
Court from any move that may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned.
To reiterate what has been already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of judicial review over an
issue whose resolution precisely called for the construction or interpretation of a provision of the
fundamental law of the land. What lies in here is an issue of a genuine constitutional material which
only this Court can properly and competently address and adjudicate in accordance with the clearcut allocation of powers under our system of government. Face-to-face thus with a matter or problem
that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to
pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of impeachment
has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the
main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed
the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming
jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political
questions. Because it is not at all the business of this Court to assert judicial dominance over the
other two great branches of the government. Rather, the raison d'etre of the judiciary is to
complement the discharge by the executive and legislative of their own powers to bring about
ultimately the beneficent effects of having founded and ordered our society upon the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is that
of the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected
by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations
could be made to it, so long as it rendered judgment according to the law and the facts. Why can it
not now be trusted to wield judicial power in these petitions just because it is the highest ranking

magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him
but the validity of a government branch's official act as tested by the limits set by the Constitution?
Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case
in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the
Supreme Court as likely incapable of impartiality when one of its members is a party to a case,
which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of its
agents to secure respect for and obedience to its commands. Perhaps, there is no other government
branch or instrumentality that is most zealous in protecting that principle of legal equality other than
the Supreme Court which has discerned its real meaning and ramifications through its application to
numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice
is not above the law and neither is any other member of this Court. But just because he is the Chief
Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of
every individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by this
impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no
other than the Constitution in search for a solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for this Court to have found answers in
our bedrock of legal principles, it is equally important that it went through this crucible of a
democratic process, if only to discover that it can resolve differences without the use of force and
aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment
Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G.
Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on October 23,
2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.
SO ORDERED.
Bellosillo and Tinga, JJ., see separate opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 189028

July 16, 2013

NATIONAL ARTIST FOR LITERATURE VIRGILIO ALMARIO, NATIONAL ARTIST FOR


LITERATURE BIENVENIDO LUMBERA, NATIONAL ARTIST FOR VISUAL ARTS (PAINTING)
BENEDICTO CABRERA, NATIONAL ARTIST FOR VISUAL ARTS (SCULPTURE) NAPOLEON
ABUEVA, NATIONAL ARTIST FOR VISUAL ARTS (PAINTING AND SCULPTURE) ARTURO LUZ,
NATIONAL ARTIST FOR PRODUCTION DESIGN SALVADOR BERNAL, UNIVERSITY
PROFESSOR EMERITUS GEMINO ABAD, DEAN MARVIC M.V.F. LEONEN (UP COLLEGE OF
LAW), DEAN DANILO SILVESTRE (UP COLLEGE OF ARCHITECTURE), DEAN ROLAND
TOLENTINO (UP COLLEGE OF MASS COMMUNICATION), PROF. JOSE DALISAY, DR. ANTON
JUAN, DR. ALEXANDER CORTEZ, DR. JOSE NEIL GARCIA, DR. PEDRO JUN CRUZ REYES,
PROF. JOSE CLAUDIO GUERRERO, PROF. MICHAEL M. COROZA, PROF. GERARD LICO,
PROF. VERNE DE LA PENA, PROF. MARIAN ABUAN, PROF. THEODORE O. TE, DR. CRISTINA
PANTOJA-HIDALGO, PROF. JOSE WENDELL CAPILI, PROF. SIR ANRIAL TIATCO, PROF.
NICOLO DEL CASTILLO, PROF. HORACIO DUMANLIG, PROF. DANTON REMOTO, PROF.
PRISCELINA PATAJOLEGASTO, PROF. BELEN CALINGACION, PROF. AMIEL Y. LEONARDIA,
PROF. VIM NADERA, PROF. MARILYN CANTA, PROF. CECILIA DELA PAZ, ROF. CHARLSON
ONG, PROF. CLOD MARLON YAMBAO, PROF. KENNETH JAMANDRE, PROF. JETHRO
JOAQUIN, ATTY. F.D. NICOLAS B. PICHAY, ATTY. ROSE BEATRIX ANGELES, MR. FERNANDO
JOSEF, MS. SUSAN S. LARA, MR. ALFRED YUSON, MS. JING PANGANIBANMENDOZA, MR.
ROMULO BAQUIRAN, JR., MR. CARLJOE JAVIER, MS. REBECCA T. ANONUEVO, MR. JP
ANTHONY D. CUNADA, MS. LEAH NAVARRO, MR. MARK MEILLY, MR. VERGEL O. SANTOS,
MR. GIL OLEA MENDOZA, MR. EDGAR C. SAMAR, MS. CHRISTINE BELLEN, MR. ANGELO R.
LACUESTA, MS. ANNA MARIA KATIGBAKLACUESTA, MR. LEX LEDESMA, MS. KELLY
PERIQUET, MS. CARLA PACIS, MR. J. ALBERT GAMBOA, MR. CESAR EVANGELISTA
BUENDIA, MR. PAOLO ALCAZAREN, MR. ALWYN C. JAVIER, MR. RAYMOND MAGNO
GARLITOS, MS. GANG BADOY, MR. LESLIE BOCOBO, MS. FRANCES BRETANA, MS. JUDITH
TORRES, MS. JANNETTE PINZON, MS. JUNE POTICAR-DALISAY, MS. CAMILLE DE LA ROSA,
MR. JAMES LADIORAY, MR. RENATO CONSTANTINO, JR., and CONCERNED ARTISTS OF
THE PHILIPPINES (CAP), Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE CULTURAL CENTER OF THE PHILIPPINES, THE NATIONAL
COMMISSION ON CULTURE AND THE ARTS, MS. CECILE GUIDOTE-ALVAREZ, MR. CARLO
MAGNO JOSE CAPARAS,1 MR. JOSE MORENO, MR. FRANCISCO MANOSA, AND ALL
PERSONS, PUBLIC AND PRIVATE, ACTING UNDER THEIR INSTRUCTIONS, DIRECTION,
CONTROL AND SUPERVISION IN RELATION TO THE CONFERMENT OF THE ORDER OF THE
NATIONAL ARTIST AND THE RELEASE OF FUNDS IN RELATION TO THE CONFERMENT OF
THE HONORS AND PRIVILEGES OF THE ORDER OF NATIONAL ARTISTS ON RESPONDENTS
GUIDOTE-ALVAREZ, CAPARAS, MORENO AND MANOSA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Art has traditionally been viewed as the expression of everything that is true, good and beautiful. As
such, it is perceived to evoke and produce a spirit of harmony. Art is also considered as a civilizing
force, a catalyst of nation-building. The notion of art and artists as privileged expressions of national
culture helped shape the grand narratives of the nation and shared symbols of the people. The artist
does not simply express his/her own individual inspiration but articulates the deeper aspirations of
history and the soul of the people.2 The law recognizes this role and views art as something that
"reflects and shapes values, beliefs, aspirations, thereby defining a peoples national identity." 3 If
unduly politicized, however, art and artists could stir controversy and may even cause discord, as
what happened in this case.

The Antecedents
History of the Order of National Artists
On April 27, 1972, former President Ferdinand E. Marcos issued Proclamation No. 1001 4 and, upon
recommendation of the Board of Trustees of the Cultural Center of the Philippines (CCP), created
the category of Award and Decoration of National Artist to be awarded to Filipinos who have made
distinct contributions to arts and letters. In the same issuance, Fernando Amorsolo was declared as
the first National Artist.
On May 15, 1973, Proclamation No. 11445 was issued. It amended Proclamation No. 1001 "by
creating a National Artists Awards Committee" that would "administer the conferment of the category
of National Artist" upon deserving Filipino artists. The Committee, composed of members of the
Board of Trustees of the CCP, was tasked to "draft the rules to guide its deliberations in the choice of
National Artists, to the end that those who have created a body of work in the arts and letters
capable of withstanding the test of time will be so recognized."
The authority of the National Artists Awards Committee to administer the conferment of the National
Artist Award was again reiterated in Presidential Decree No. 2086 issued on June 7, 1973.
On April 3, 1992, Republic Act No. 7356, otherwise known as the Law Creating the National
Commission for Culture and the Arts, was signed into law. It established the National Commission for
Culture and the Arts (NCCA) and gave it an extensive mandate over the development, promotion
and preservation of the Filipino national culture and arts and the Filipino cultural heritage. The NCCA
was tasked with the following:
Sec. 8. The Commission. A National Commission for Culture and Arts is hereby created to
formulate policies for the development of culture and arts; implement these policies in coordination
with affiliated cultural agencies; coordinate the implementation of programs of these affiliated
agencies; administer the National Endowment Fund for Culture and Arts (NEFCA); encourage
artistic creation within a climate of artistic freedom; develop and promote the Filipino national culture
and arts; and preserve Filipino cultural heritage. The Commission shall be an independent agency. It
shall render an annual report of its activities and achievements to the President and to Congress.
Among the specific mandates of the NCCA under Republic Act No. 7356 is to "extend recognition of
artistic achievement through awards, grants and services to artists and cultural groups which
contribute significantly to the Filipinos cultural legacy."7 In connection with this mandate, the NCCA is
vested with the power to "advise the President on matters pertaining to culture and the arts,
including the creation of a special decoration or award, for persons who have significantly
contributed to the development and promotion of Philippine culture and arts." 8
As both the CCP Board of Trustees and the NCCA have been mandated by law to promote, develop
and protect the Philippine national culture and the arts, and authorized to give awards to deserving
Filipino artists, the two bodies decided to team up and jointly administer the National Artists
Award.9 Thereafter, they reviewed the guidelines for the nomination, selection and administration of
the National Artists Award. Pursuant to their respective powers to draft and promulgate rules,
regulations and measures to guide them in their deliberations in the choice of National Artists, the
CCP and NCCA adopted the following revised guidelines in September 2007 10:
4. ADMINISTRATION OF THE AWARD

4.1. The National Commission for Culture and the Arts (NCCA) shall plan, organize
and implement the Order of National Artists in coordination with the Cultural Center
of the Philippines (CCP).
4.2. It shall enlist the support and cooperation of private sector experts from the
various fields of art to ensure that the awards are implemented in a successful and
impartial manner.
4.3. The National Artist Award Secretariat shall commission art experts to form a
Special Research Group who shall verify information submitted on nominees and
provide essential data.
They shall be selected for their specialization and familiarity with the works and
accomplishments of nominated artists.
4.4. The Special Research Group shall be composed of ten (10) to twenty (20)
members who have expertise in one or more fields or disciplines.
4.5. The National Artist Award Council of Experts shall be created before or during
the nomination period. It is tasked to screen nominees and recommend to the NCCA
and CCP Boards the candidates for the Order of National Artists. It shall be
composed of highly regarded peers, scholars, (including cultural philosophers and
historians), academicians, researchers, art critics, and other knowledgeable
individuals. A wider age-range of experts who would have first-hand knowledge of
achievements of nominees shall be considered.
4.6. The selection of the members of the National Artist Award Council of Experts
shall be based on the following criteria:
(a) should have achieved authority, credibility and track record in his field(s)
of expertise;
(b) should have extensive knowledge in his field(s) and his views on
Philippine art and culture must be national in perspective;
(c) should be a recognized authority in the study or research of Philippine art
and culture;
(d) must be willing to devote sufficient time and effort to the work of the
Council;
(e) must be willing to sign a non-disclosure statement in order to safeguard
the confidentiality of the deliberations;
(f) must not have been convicted with finality of any crime by a court of
justice or dismissed for cause by any organization, whether public or private.
4.7. The National Artist Award Council of Experts shall be composed of a maximum
of seven (7) members each of the seven (7) areas/disciplines. The living National
Artists will automatically become members in addition to the forty-nine (49) selected
members. These members will constitute the first deliberation panel and will be

invited to evaluate the nominations and materials submitted by the Special Research
Group.
4.8. Any member of the Council of Experts who is nominated or related to a nominee
up to the fourth degree of consanguinity or affinity shall inhibit himself/herself from
the deliberation process. Likewise, any member may decline to participate in the
deliberation for any reason or may be removed for just cause upon recommendation
to the NCCA Board by at least two thirds (2/3) of the members; in which case, the
National Artist Award Secretariat shall again select the replacements for those who
decline or resigned until the first deliberation panel is completed.
4.9. The list of nominated members of the National Artist Award Council of Experts
shall be reviewed by the National Artist Award Secretariat as needed, for purposes of
adding new members or replacements.
4.10. The members of the National Artist Award Council of Experts shall serve for a
fixed term of three (3) years.
5. CRITERIA FOR SELECTION
The Order of National Artists shall be given to:
5.1 Living artists who are Filipino citizens at the time of nomination, as well as those
who died after the establishment of the award in 1972 but were Filipino citizens at the
time of their death.
5.2 Artists who through the content and form of their works have contributed in
building a Filipino sense of nationhood.
5.3. Artists who have pioneered in a mode of creative expression or style, thus,
earning distinction and making an impact on succeeding generations of artists.
5.4. Artists who have created a substantial and significant body of works and/or
consistently displayed excellence in the practice of their art form thus enriching
artistic expression or style.
5.5 Artists who enjoy broad acceptance through:
5.5.1. prestigious national and/or international recognition, such as the
Gawad CCP Para sa Sining, CCP Thirteen Artists Award and NCCA Alab ng
Haraya
5.5.2. critical acclaim and/or reviews of their works
5.5.3. respect and esteem from peers.
6. NOMINATION PROCEDURE
6.1. The National Artist Award Secretariat shall announce the opening of nominations
through media releases and letters to qualified organizations.

6.2. Candidates may be nominated under one or more of the following categories:
6.2.1. Dance choreography, direction and/or performance.
6.2.2. Music composition, direction, and/or performance.
6.2.3. Theater direction, performance and/or production design.
6.2.4. Visual Arts painting, sculpture, printmaking, photography, installation art,
mixed media works, illustration, comics/komiks, graphic arts, performance art and/or
imaging.
6.2.5. Literature poetry, fiction (short story, novel and play); non-fiction (essay,
journalism, literary criticism and historical literature).
6.2.6. Film and Broadcast Arts direction, writing, production design,
cinematography, editing, camera work, and/or performance.
6.2.7. Architecture, Design and Allied Arts architecture design, interior design,
industrial arts design, landscape architecture and fashion design.
6.3. Nominations for the Order of National Artists may be submitted by government
and non-government cultural organizations and educational institutions, as well as
private foundations and councils.
6.4. Members of the Special Research Group, as well as agencies attached to the
NCCA and CCP shall not submit nominations.
6.5. NCCA and CCP Board members and consultants and NCCA and CCP officers
and staff are automatically disqualified from being nominated.
6.6. Nominations shall be accepted only when these are submitted in writing and with
proper supporting documentation, as follows:
6.6.1. A cover letter signed by the head or designated representative of the
nominating organization.
The cover letter shall be accompanied by a Board Resolution approving the
nominee concerned with the said resolution signed by the organization
President and duly certified by the Board Secretary.
6.6.2. A duly accomplished nomination form;
6.6.3. A detailed curriculum vitae of the nominee;
6.6.4. A list of the nominees significant works categorized according to the
criteria;
6.6.5. The latest photograph (color or black and white) of the nominee, either
5" x 7" or 8" x 11";

6.6.6. Pertinent information materials on the nominees significant works (on


CDs, VCDs and DVDs);
6.6.7. Copies of published reviews;
6.6.8. Any other document that may be required.
6.7. Nominations received beyond the announced deadline for the submission of
nominations shall not be considered.
6.8. The National Artist Award Secretariat shall announce the opening of nominations
through media releases.
6.9. All inquiries and nominations shall be submitted to
The NATIONAL ARTIST AWARD SECRETARIAT
Office of the Artistic Director Cultural Center of the Philippines Roxas Boulevard, 1300 Pasay City or
The NATIONAL ARTIST AWARD SECRETARIAT Office of the Deputy Executive Director National
Commission for Culture and the Arts 633 General Luna Street, Intramuros, Manila
7. SCREENING AND SELECTION PROCESS
7.1. The National Artist Award Secretariat shall pre-screen the nominees based on
technical guideline items 5.1, 6.2, 6.3, 6.4, 6.5 and 6.6. The pre-screening shall not
be based on the accomplishments and merits of the nominee.
7.2. The Special Research Group shall accomplish its task within six (6) months. The
main objective is to verify the validity of the data, and evaluate the quality, true value
and significance of works according to the criteria. It shall come up with the updated
and comprehensive profiles of nominees reflecting their most outstanding
achievements.
7.3. The National Artist Award Secretariat will meet to review the list of nominees for
oversights. Consequently, deserving nominees shall be added to the list.
7.4. The first deliberation panel (Council of Experts) shall be intra-disciplinary. The
panelists shall be grouped according to their respective fields of expertise or
disciplines to shortlist the nominees in their disciplines or categories for presentation
to the second deliberation panel.
7.5. The second deliberation panel shall be composed of a different set of experts
from the first deliberation panel three (3) experts each of the seven (7)
areas/discipline and may include members from varying backgrounds such as critics
and academicians. The achievements of each shortlisted nominee shall be
presented by one designated member of Council of Experts. Then panel deliberates
and ranks the shortlisted nominees according to the order of precedence following
the set criteria of the Order of National Artists. In extreme cases, the Second
Deliberation may add new names to the lists.

7.6. The second deliberation panel may recommend not to give award in any
category if no nominee is found deserving. The number of awardees shall also
depend on the availability of funds. All decisions and recommendations shall be in
writing.
7.7. The recommendations from the Second Deliberation Panel of the National Artist
Award Council of Experts shall then be presented to the joint boards of NCCA and
CCP for final selection. The presentors shall prepare their presentation in writing
together with an audio-visual presentation or powerpoint presentation. Written
interpellations/opinions will be accepted from selected critics. The review shall be
based on the ranking done by the Second Deliberation. The voting shall be across
disciplines. The National Artists will be given the option whether to vote on all
categories or on his/her particular discipline.
7.8. Proxy votes will not be allowed in the Selection Process. Designation of
permanent representatives of agencies should be made at the outset to make them
regular Board members of NCCA and thus, may be allowed to cast votes.
7.9. The list of awardees shall be submitted to the President of the Republic of the
Philippines for confirmation, proclamation and conferral.
8. PRESENTATION OF THE AWARDS
8.1. The Order of National Artists shall not be conferred more frequently than every
three (3) years.
8.2. The Order of National Artists shall be conferred by the President of the
Philippines on June 11 or any appropriate date in fitting ceremonies to be organized
by the National Artist Secretariat.
8.3. The medallion of the Order of National Artists and citation shall be given to the
honoree during the conferment ceremony. The cash award of P100,000.00 in cheque
shall be given immediately after the ceremony or at another time and place as
requested by the honoree.
8.4. A posthumous conferral consisting of the medallion and citation shall be given to
the family or legal heir/s of the honoree. The cash award of P75,000.00 in cheque
shall be given to the honorees legal heir/s or a representative designated by the
family immediately after the ceremony or at another time and place as requested by
the family. (Emphases supplied.)
In 1996, the NCCA and the CCP created a National Artist Award Secretariat composed of the NCCA
Executive Director as Chairperson, the CCP President as Vice-Chairperson, and the NCCA Deputy
Executive Director, the CCP Vice-President/Artistic Director, the NCCA National Artist Award Officer
and the CCP National Artist Award Officer as members. They also centralized with the NCCA all
financial resources and management for the administration of the National Artists Award. They
added another layer to the selection process to involve and allow the participation of more members
of the arts and culture sector of the Philippines in the selection of who may be proclaimed a National
Artist.

On September 19, 2003, Executive Order No. 236, s. 2003, entitled Establishing the Honors Code of
the Philippines to Create an Order of Precedence of Honors Conferred and for Other Purposes, was
issued. The National Artists Award was renamed the Order of National Artists and raised to the level
of a Cultural Order, fourth in precedence among the orders and decorations that comprise the
Honors of the Philippines. Executive Order No. 236, s. 2003, recognizes the vital role of the NCCA
and the CCP in identifying Filipinos who have made distinct contributions to arts and letters and
states that the National Artist recognition is conferred "upon the recommendation of the Cultural
Center of the Philippines and the National Commission for Culture and the Arts." 12 Executive Order
No. 236, s. 2003, further created a Committee on Honors to "assist the President in evaluating
nominations for recipients of Honors,"13 including the Order of National Artists, and presidential
awards. The Committee on Honors has been allowed to "authorize relevant department or
government agencies to maintain Honors and/or Awards Committees to process nominations for
Honors and/or Presidential Awards."14In this connection, Section 2.4(A) of the Implementing Rules
and Regulations15 of Executive Order No. 236, s. 2003, states:
2.4: Awards Committees
There shall be two types of awards committees: the Committee on Honors and the various awards
committees in the various units of the government service.
A. The Committee on Honors
The Committee on Honors serves as a National Awards Committee. It is composed of the following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be submitted to the Committee on Honors
via the Chancellery of Philippine Orders and State Decorations. The Chancellery shall process
nominations for the consideration of the Committee on Honors. The Committee on Honors shall
screen and recommend these nominations to the President.
The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that
nominations received from the various awards committees meet two tests: that there has not been
an abuse of discretion in making the nomination, and that the nominee is in good standing. Should a
nomination meet these criteria, a recommendation to the President for conferment shall be made.
The President of the Philippines takes the recommendations of the Committee on Honors in the
highest consideration when making the final decision on the conferment of awards. (Emphasis
supplied.)

Executive Order No. 435, s. 2005, entitled Amending Section 5(IV) of Executive Order No. 236
Entitled "Establishing the Honors Code of the Philippines to Create an Order of Precedence of
Honors Conferred and for Other Purposes" was subsequently issued on June 8, 2005. It amended
the wording of Executive Order No. 236, s. 2003, on the Order of National Artists and clarified that
the NCCA and the CCP "shall advise the President on the conferment of the Order of National
Artists."
Controversy Surrounding the 2009
Order of National Artists
Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA Board of Commissioners
and the CCP Board of Trustees was held to discuss, among others, the evaluation of the 2009 Order
of National Artists and the convening of the National Artist Award Secretariat. The nomination period
was set for September 2007 to December 31, 2007, which was later extended to February 28, 2008.
The pre-screening of nominations was held from January to March 2008. 16
On April 3, 2009, the First Deliberation Panel met.17 A total of 87 nominees18 were considered during
the deliberation and a preliminary shortlist19 of 32 names was compiled.
On April 23, 2009, the Second Deliberation Panel purportedly composed of an entirely new set of
Council of Experts met and shortlisted 13 out of the 32 names in the preliminary shortlist. 20 On May
6, 2009, the final deliberation was conducted by the 30-member Final Deliberation Panel comprised
of the CCP Board of Trustees and the NCCA Board of Commissioners and the living National
Artists.21 From the 13 names in the second shortlist, a final list of four names was agreed upon. 22 The
final list, according to rank, follows:
Name

Art Field/Category

Number of Votes

Manuel Conde (+)

Film and Broadcast Arts (Film)

26

Ramon Santos

Music

19

Lazaro Francisco (+)

Literature

15

Federico Aguilar-Alcuaz

Visual Arts

15

On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA, Undersecretary Vilma
Labrador, and the President and Artistic Director of the CCP, Mr. Nestor Jardin, was sent to the
President.23 The letter stated, thus:
May 6, 2009
Her Excellency GLORIA MACAPAGAL-ARROYO
President of the Philippines
Malacaan Palace, Manila
Subject: 2009 Order of National Artist Awardees
Dear President Arroyo:
We are respectfully submitting a recommendation of the NCCA Board of Trustees and CCP Board of
Trustees for the Proclamation of the following as 2009 Order of National Artists:

1. Mr. MANUEL CONDE+ (Posthumous) Film and Broadcast Arts


2. Dr. RAMON SANTOS Music
3. Mr. LAZARO FRANCISCO+ (Posthumous) Literature
4. Mr. FEDERICO AGUILAR-ALCUAZ Visual Arts
The above persons were identified by experts in the various fields of arts and culture, including living
National Artists. An intensive selection process was observed following established practice. In the
past, awards were presented by the President at a Ceremony held at the Malacaan Palace
followed by a program called "Parangal" at the Cultural Center of the Philippines. We also propose to
continue with past practice of celebrating the life and works of the four (4) Order of National Artists
through an exhibit that will open and a commemorative publication that will be released on the day of
the proclamation.
We respectfully suggest, subject to Her Excellencys availability, that the Proclamation be on June
11, 2009, if possible at the Malacaan Palace.
Thank you for your kind attention.
Very respectfully yours,
(Sgd.)
VILMA L. LABRADOR
Chairman
National Commission for Culture and the Arts
(Sgd.)
NESTOR O. JARDIN
President and Artistic Director
Cultural Center of the Philippines24
According to respondents, the aforementioned letter was referred by the Office of the President to
the Committee on Honors. Meanwhile, the Office of the President allegedly received nominations
from various sectors, cultural groups and individuals strongly endorsing private respondents Cecile
Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Maosa and Jose Moreno. The Committee
on Honors purportedly processed these nominations and invited resource persons to validate the
qualifications and credentials of the nominees.25
The Committee on Honors thereafter submitted a memorandum to then President Gloria MacapagalArroyo recommending the conferment of the Order of National Artists on the four recommendees of
the NCCA and the CCP Boards, as well as on private respondents Guidote-Alvarez, Caparas,
Maosa and Moreno. Acting on this recommendation, Proclamation No. 1823 declaring Manuel
Conde a National Artist was issued on June 30, 2009. Subsequently, on July 6, 2009, Proclamation
Nos. 1824 to 1829 were issued declaring Lazaro Francisco, Federico AguilarAlcuaz and private
respondents Guidote-Alvarez, Caparas, Maosa and Moreno, respectively, as National Artists. This
was subsequently announced to the public by then Executive Secretary Eduardo Ermita on July 29,
2009.26

Convinced that, by law, it is the exclusive province of the NCCA Board of Commissioners and the
CCP Board of Trustees to select those who will be conferred the Order of National Artists and to set
the standard for entry into that select group, petitioners instituted this petition for prohibition,
certiorari and injunction (with prayer for restraining order) praying that the Order of National Artists
be conferred on Dr. Santos and that the conferment of the Order of National Artists on respondents
Guidote-Alvarez, Caparas, Maosa and Moreno be enjoined and declared to have been rendered in
grave abuse of discretion.27
In a Resolution28 dated August 25, 2009, the Court issued a status quo order 29 enjoining "public
respondents" "from conferring the rank and title of the Order of National Artists on private
respondents; from releasing the cash awards that accompany such conferment and recognition; and
from holding the acknowledgment ceremonies for recognition of the private respondents as National
Artists."
What is the nature and scope of the power of the President to confer the Order of the National Artists
and how should it be exercised? This is the essential issue presented in this case. It will determine
whether the proclamation of respondents as National Artists is valid. Preliminary procedural issues
on the standing of the petitioners and the propriety of the remedies taken, 30 however, call for
resolution as a prerequisite to the discussion of the main question.
Contention of the Parties
A perusal of the pleadings submitted by the petitioners reveals that they are an aggrupation of at
least three groups, the National Artists, cultural workers and academics, and the Concerned Artists
of the Philippines (CAP). The National Artists assert an "actual as well as legal interest in
maintaining the reputation of the Order of National Artists."31 In particular, they invoke their right to
due process not to have the honor they have been conferred with diminished by the irregular and
questionable conferment of the award on respondents Guidote-Alvarez, Caparas, Maosa and
Moreno. For petitioners, this would adversely affect their right to live a meaningful life as it detracts
not only from their right to enjoy their honor as a fruit of their lifelong labor but also from the respect
of their peers.32
The cultural workers, academics and CAP claim to be Filipinos who are deeply concerned with the
preservation of the countrys rich cultural and artistic heritage. As taxpayers, they are concerned
about the use of public monies for illegal appointments or spurious acts of discretion. 33
All of the petitioners claim that former President Macapagal-Arroyo gravely abused her discretion in
disregarding the results of the rigorous screening and selection process for the Order of National
Artists and in substituting her own choice for those of the Deliberation Panels. According to
petitioners, the Presidents discretion to name National Artists is not absolute but limited. In
particular, her discretion on the matter cannot be exercised in the absence of or against the
recommendation of the NCCA and the CCP. In adding the names of respondents Caparas, GuidoteAlvarez, Maosa and Moreno while dropping Dr. Santos from the list of conferees, the Presidents
own choices constituted the majority of the awardees in utter disregard of the choices of the NCCA
and the CCP and the arts and culture community which were arrived at after a long and rigorous
process of screening and deliberation. Moreover, the name of Dr. Santos as National Artist for Music
was deleted from the final list submitted by the NCCA and the CCP Boards without clearly indicating
the basis thereof. For petitioners, the Presidents discretion to name National Artists cannot be
exercised to defeat the recommendations made by the CCP and NCCA Boards after a long and
rigorous screening process and with the benefit of expertise and experience. The addition of four
names to the final list submitted by the Boards of the CCP and the NCCA and the deletion of one
name from the said list constituted a substitution of judgment by the President and a unilateral

reconsideration without clear justification of the decision of the First, Second and Final Deliberation
Panels composed of experts.34
Petitioners further argue that the choice of respondent GuidoteAlvarez was illegal and unethical
because, as the then Executive Director of the NCCA and presidential adviser on culture and arts,
she was disqualified from even being nominated. 35 Moreover, such action on the part of the former
President constituted grave abuse of discretion as it gave preferential treatment to respondent
Guidote-Alvarez by naming the latter a National Artist despite her not having been nominated and,
thus, not subjected to the screening process provided by the rules for selection to the Order of
National Artists. Her inclusion in the list by the President represented a clear and manifest favor
given by the President in that she was exempted from the process that all other artists have to
undergo. According to petitioners, it may be said that the President used a different procedure to
qualify respondent Guidote-Alvarez. This was clearly grave abuse of discretion for being manifest
and undue bias violative of the equal protection clause. 36
Respondent Caparas refutes the contention of the petitioning National Artists and insists that there
could be no prejudice to the latter. They remain to be National Artists and continue to receive the
emoluments, benefits and other privileges pertaining to them by virtue of that honor. On the other
hand, all the other petitioners failed to show any material and personal injury or harm caused to
them by the conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas,
Maosa and Moreno. The rule on standing may not be relaxed in favor of the petitioners as no
question of constitutionality has been raised and no issue of transcendental importance is involved. 37
Respondent Caparas further argues that the remedies of prohibition and injunction are improper as
the act sought to be enjoined the declaration of respondents Guidote-Alvarez, Caparas, Maosa
and Moreno as National Artists had already been consummated. In particular, respondent Caparas
was already proclaimed National Artist through Proclamation No. 1827 issued on July 6, 2009. 38
On the merits, respondent Caparas contends that no grave abuse of discretion attended his
proclamation as National Artist. The former President considered the respective recommendations of
the NCCA and the CCP Boards and of the Committee on Honors in eventually declaring him
(Caparas) as National Artist. The function of the NCCA and the CCP Boards is simply to advise the
President. The award of the Order of National Artists is the exclusive prerogative of the President
who is not bound in any way by the recommendation of the NCCA and the CCP Boards. The
implementing rules and regulations or guidelines of the NCCA cannot restrict or limit the exclusive
power of the President to select the recipients of the Order of National Artists. 39
For her part, in a letter40 dated March 11, 2010, respondent Guidote-Alvarez manifested that she was
waiving her right to file her comment on the petition and submitted herself to the Courts discretion
and wisdom.
Respondent Maosa manifested that his creations speak for themselves as his contribution to
Filipino cultural heritage and his worthiness to receive the award. Nonetheless, he expressed his
conviction that the Order of National Artists is not a right but a privilege that he would willingly
relinquish should he be found not worthy of it.41
Respondent Moreno did not file any pleading despite being given several opportunities to do so.
Hence, the Court dispensed with his pleadings. 42
In a Resolution dated July 12, 2011, this Court gave due course to the petition and required the
parties to file their respective memoranda.43 Respondent Caparas filed his memorandum on
September 8, 2011,44 the CCP filed its memorandum on September 19, 2011, 45 respondent Maosa

on September 20, 2011,46 and the Office of the Solicitor General filed a manifestation stating that it is
adopting its comment as its memorandum on September 21, 2011. 47 Respondent Moreno failed to
file a Memorandum, hence, the Court resolved to dispense with the same. 48 Petitioners filed their
Memorandum on May 14, 2012.49
On the other hand, the original position of the Office of the Solicitor General (OSG) was similar to
that of respondent Caparas.50 In a subsequent manifestation,51 however, the OSG stated that the
current Board of Commissioners of the NCCA agree with the petitioners that the President cannot
honor as a National Artist one who was not recommended by the joint Boards of the NCCA and the
CCP. The implementing rules and regulations of Executive Order No. 236, s. 2003, recognized the
binding character of the recommendation of the NCCA and the CCP Boards and limited the authority
of the Committee on Honors to the determination that (1) there has been no grave abuse of
discretion on the part of the NCCA and the CCP Boards in making the nomination, and (2) the
nominee is in good standing. Where a nomination meets the said two criteria, a recommendation to
the President to confer the award shall be made.52
The OSG further argued that, while the President exercises control over the NCCA and the CCP, the
President has the duty to faithfully execute the laws, including the NCCA-CCP guidelines for
selection of National Artists and the implementing rules of Executive Order No. 236, s. 2003.
Moreover, the laws recognize the expertise of the NCCA and the CCP in the arts and tasked them to
screen and select the artists to be conferred the Order of National Artists. Their mandate is clear and
exclusive as no other agency possesses such expertise.53
The OSG also assailed the former Presidents choice of respondent Guidote-Alvarez for being
contrary to Republic Act No. 7356.54 Section 11 of the said law provides:
Sec. 11. Membership Restrictions. During his/her term as member of the Commission, a
Commissioner shall not be eligible for any grant, or such other financial aid from the Commission as
an individual: Provided, however, That he/she may compete for grants and awards on the same level
as other artists one (1) year after his/her term shall have expired.
The omission of the word "award" in the first portion of the above provision appears to be
unintentional as shown by the proviso which states that a member may compete for grants and
awards only one year after his or her term shall have expired. As such, respondent Guidote-Alvarez
is restricted and disqualified from being conferred the 2009 Order of National Artists. 55
The Courts Ruling
Standing of the Petitioners
Standing is the determination of whether a specific person is the proper party to bring a matter to the
court for adjudication.56 The gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions.57
The parties who assail the constitutionality or legality of a statute or an official act must have a direct
and personal interest. They must show not only that the law or any governmental act is invalid, but
also that they sustained or are in immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that they suffer thereby in some indefinite way. They must show that
they have been or are about to be denied some right or privilege to which they are lawfully entitled or

that they are about to be subjected to some burdens or penalties by reason of the statute or act
complained of.58
In this case, we find that the petitioning National Artists will be denied some right or privilege to
which they are entitled as members of the Order of National Artists as a result of the conferment of
the award on respondents Guidote-Alvarez, Caparas, Maosa and Moreno. In particular, they will be
denied the privilege of exclusive membership in the Order of National Artists.
In accordance with Section 2(a)59 of Executive Order No. 236, s. 2003, the Order of National Artists
is "an exclusive association of honored individuals." To ensure the exclusivity of the membership in
the Order, a rigid nomination and screening process has been established with different sets of
renowned artists and respected art critics invited to sit as the Council of Experts for the First and
Second Deliberation Panels. Moreover, all living National Artists are given a voice on who should be
included in their exclusive club as they automatically become members of the Final Deliberation
Panel that will vote on who should be included in the final list to be submitted to the President for
conferment of the Order of National Artists. To allow the untrammeled discretion and authority of the
President to confer the Order of National Artists without regard to the stringent screening and
rigorous selection process established by the NCCA and the CCP will diminish, if not negate, the
exclusive nature of the said Order. It will unduly subject the selection and conferment of the Order of
National Artists to politics rather than to principles and procedures. It will subvert the transparent and
rigorous process and allow entry to the exclusive Order of National Artists through a secret backdoor
of lobbying, back channeling and political accommodation.
Among the other petitioners, Prof. Gemino Abad presents a unique valid personal and substantial
interest. Like respondents Caparas, Maosa and Moreno, he was among the 87 nominees for the
2009 Order of National Artists. Like respondent Moreno, he made it to the preliminary shortlist. As he
did not make it to the second shortlist, he was not considered by the Final Deliberation Panel, more
so by the former President.
It should be recalled too that respondent Guidote-Alvarez was disqualified to be nominated for being
the Executive Director of the NCCA at that time while respondents Maosa and Caparas did not
make it to the preliminary shortlist and respondent Moreno was not included in the second shortlist.
Yet, the four of them were treated differently and considered favorably when they were exempted
from the rigorous screening process of the NCCA and the CCP and conferred the Order of National
Artists. The Committee on Honors and the former President effectively treated respondents GuidoteAlvarez, Caparas, Maosa and Moreno as a preferred class. The special treatment accorded to
respondents Guidote-Alvarez, Caparas, Maosa and Moreno fails to pass rational scrutiny.60 No real
and substantial distinction between respondents and petitioner Abad has been shown that would
justify deviating from the laws, guidelines and established procedures, and placing respondents in
an exceptional position. The undue classification was not germane to the purpose of the law.
Instead, it contradicted the law and well-established guidelines, rules and regulations meant to carry
the law into effect. While petitioner Abad cannot claim entitlement to the Order of National
Artists,61 he is entitled to be given an equal opportunity to vie for that honor. In view of the foregoing,
there was a violation of petitioner Abads right to equal protection, an interest that is substantial
enough to confer him standing in this case.
As regards the other concerned artists and academics as well as the CAP, their claim of deep
concern for the preservation of the countrys rich cultural and artistic heritage, while laudable, falls
short of the injury in fact requirement of standing. Their assertion constitutes a generalized grievance
shared in a substantially equal measure by all or a large class of citizens. 62 Nor can they take refuge
in their status as taxpayers as the case does not involve any illegal appropriation or taxation. A

taxpayers suit is proper only when there is an exercise of the spending or taxing power of the
Congress.63
Nonetheless, as a reading of the petition shows that it has advanced an issue which deserves the
attention of this Court in view of its seriousness, novelty and weight as precedent, it behooves the
Court to relax the rules on standing and to resolve the issue presented before it. 64 Moreover, this
issue is of paramount interest,65 which further justifies a liberal stance on standing.
Propriety of the Remedies
The present action is a petition for prohibition, certiorari, injunction, restraining order and all other
legal, just and equitable reliefs.
It has been held that the remedies of prohibition and injunction are preventive and, as such, cannot
be availed of to restrain an act that is already fait accompli. 66 Where the act sought to be prohibited
or enjoined has already been accomplished or consummated, prohibition or injunction becomes
moot.67
Nevertheless, even if the principal issue is already moot, this Court may still resolve its merits for the
future guidance of both bench and bar. Courts will decide a question otherwise moot and academic if
it is "capable of repetition, yet evading review."68
It is an opportune time for the Court to assert its role as republican schoolmaster,69 a teacher in a
vital national seminar.70 There are times when the controversy is of such character that, to prevent its
recurrence and to assure respect for constitutional limitations, this Court must pass on the merits of
a case.71 This is one such case. More than being a teaching moment, this is not the first time that the
Order of National Artists was conferred in the manner that is being assailed in this case. 72 If not
addressed here and now, there is great probability that the central question involved in this case will
haunt us again in the future. Every President may invoke absolute presidential prerogative and thrust
upon us National Artists after his or her own heart, in total disregard of the advise of the CCP and the
NCCA and the voice of the community of artists, resulting to repeated episodes of indignation and
uproar from the artists and the public.
Furthermore, if not corrected, such an act would give rise to mischief and dangerous precedent
whereby those in the corridors of power could avoid judicial intervention and review by merely
speedily and stealthily completing the commission of an illegality.73
In any event, the present petition is also for certiorari and there is no procedural bar for the Court to
pass upon the question of whether the proclamations of respondents Guidote-Alvarez, Caparas,
Maosa and Moreno as National Artists were attended by grave abuse of presidential discretion.
Limits of the Presidents Discretion
The respective powers of the CCP Board of Trustees and of the NCCA Board of Commissioners with
respect to the conferment of the Order of National Artists are clear. They jointly administer the said
award and, upon their recommendation or advice, the President confers the Order of National
Artists.
To "recommend" and to "advise" are synonymous. To "recommend" is "to advise or counsel." 74 To
"advise" is "to give an opinion or counsel, or recommend a plan or course of action; also to give
notice. To encourage, inform or acquaint."75 "Advise" imports that it is discretionary or optional with

the person addressed whether he will act on such advice or not.76 This has been clearly explained in
Cojuangco, Jr. v. Atty. Palma77:
The "power to recommend" includes the power to give "advice, exhortation or indorsement, which is
essentially persuasive in character, not binding upon the party to whom it is made." (Emphasis
supplied.)
Thus, in the matter of the conferment of the Order of National Artists, the President may or may not
adopt the recommendation or advice of the NCCA and the CCP Boards. In other words, the advice
of the NCCA and the CCP is subject to the Presidents discretion.
Nevertheless, the Presidents discretion on the matter is not totally unfettered, nor the role of the
NCCA and the CCP Boards meaningless.
Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined in to
keep it from straying. In its classic formulation, "discretion is not unconfined and vagrant" but
"canalized within banks that keep it from overflowing." 78
The Presidents power must be exercised in accordance with existing laws. Section 17, Article VII of
the Constitution prescribes faithful execution of the laws by the President:
Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He
shall ensure that the laws be faithfully executed. (Emphasis supplied.)
The Presidents discretion in the conferment of the Order of National Artists should be exercised in
accordance with the duty to faithfully execute the relevant laws. The faithful execution clause is best
construed as an obligation imposed on the President, not a separate grant of power.79 It simply
underscores the rule of law and, corollarily, the cardinal principle that the President is not above the
laws but is obliged to obey and execute them.80 This is precisely why the law provides that
"administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution."81
In this connection, the powers granted to the NCCA and the CCP Boards in connection with the
conferment of the Order of National Artists by executive issuances were institutionalized by two laws,
namely, Presidential Decree No. 208 dated June 7, 1973 and Republic Act No. 7356. In particular,
Proclamation No. 1144 dated May 15, 1973 constituted the CCP Board as the National Artists
Awards Committee and tasked it to "administer the conferment of the category of National Artist"
upon deserving Filipino artists with the mandate to "draft the rules to guide its deliberations in the
choice of National Artists":
Proclamation No. 1001 dated April 27, 1972, creating the Award and Decoration of National Artist, is
hereby amended by creating a National Artists Awards Committee, hereinafter to administer the
conferment of the category of National Artist upon those deserving thereof. The Committee, which
shall be composed of members of the Board of Trustees of the Cultural Center of the Philippines,
shall organize itself immediately and shall draft the rules to guide its deliberations in the choice of
National Artists, to the end that those who have created a body of work in the arts and in letters
capable of withstanding the test of time will be so recognized. (Emphases supplied.)
The authority of the CCP Board of Trustees as National Artists Awards Committee was reiterated in
Presidential Decree No. 208 dated June 7, 1973.

The function of the CCP Board of Trustees as National Artists Awards Committee has been
recognized under Republic Act No. 7356:
Sec. 18. The National Cultural Agencies. The [NCCA] shall coordinate with the national cultural
agencies including but not limited to the Cultural Center of the Philippines, the Institute of Philippine
Languages, the National Historical Institute, the National Library, the National Museum, the Records
Management and Archives Office. However, they shall continue operating under their respective
charters or as provided by law where provisions therein are not inconsistent with the provisions of
this Act. They shall serve as the national repository and/or showcase, as the case may be, of the
best of Philippine culture and arts. For this purpose, these agencies shall submit periodic reports,
including recommendations to the [NCCA]. (Emphasis supplied.)
On the other hand, the NCCA has been given the following mandate in connection with the
conferment of cultural or arts awards:
Sec. 12. Mandate. The Commission is hereby mandated to formulate and implement policies and
plans in accordance with the principles stated in Title 1 of this Act.
(a) To encourage the continuing and balanced development of a pluralistic culture by the
people themselves, it shall:
xxxx
(4) extend recognition of artistic achievement through awards, grants and services to artists
and cultural groups which contribute significantly to the Filipinos cultural legacy;
xxxx
Sec. 13. Powers and Functions. To carry out its mandate, the Commission shall exercise
the following powers and functions:
xxxx
(j) advise the President on matters pertaining to culture and the arts, including the creation of
a special decoration or award, for persons who have significantly contributed to the
development and promotion of Philippine culture and arts;
(k) promulgate rules, regulations and undertake any and all measures as may be necessary
to implement this Act. (Emphases supplied.)
By virtue of their respective statutory mandates in connection with the conferment of the National
Artist Award, the NCCA and the CCP decided to work together and jointly administer the National
Artist Award. They reviewed the guidelines for the nomination, selection and administration of the
National Artist Award, created a National Artist Award Secretariat, centralized all financial resources
and management for the administration of the National Artist Award, and added another layer to the
selection process so that more members of the arts and culture sector of the Philippines may be
involved and participate in the selection of National Artists.
We have held that an administrative regulation adopted pursuant to law has the force and effect of
law.82 Thus, the rules, guidelines and policies regarding the Order of National Artists jointly issued by
the CCP Board of Trustees and the NCCA pursuant to their respective statutory mandates have the

force and effect of law. Until set aside, they are binding upon executive and administrative
agencies,83 including the President himself/herself as chief executor of laws. In this connection,
Section 2.5(A) of the Implementing Rules and Regulations84 of Executive Order No. 236, s. 2003
provides:
2.5: General Guidelines for Awards Committees
A. National Orders of Cultural and Scientific Merit
The existing modalities of the NCCA for selecting recipients for the Order of National Artists, and the
Gawad sa Manlilikha ng Bayan, and of the NAST for selecting recipients of the Order of National
Scientists, shall remain in force. (Emphases supplied.)
Section 2.4(A) of the same implementing rules further states:
2.4: Awards Committees
There shall be two types of awards committees: the Committee on Honors and the various awards
committees in the various units of the government service.
A. The Committee on Honors
The Committee on Honors serves as a National Awards Committee. It is composed of the following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be submitted to the Committee on Honors
via the Chancellery of Philippine Orders and State Decorations. The Chancellery shall process
nominations for the consideration of the Committee on Honors. The Committee on Honors shall
screen and recommend these nominations to the President.
The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that
nominations received from the various awards committees meet two tests: that there has not been
an abuse of discretion in making the nomination, and that the nominee is in good standing. Should a
nomination meet these criteria, a recommendation to the President for conferment shall be made.
The President of the Philippines takes the recommendations of the Committee on Honors in the
highest consideration when making the final decision on the conferment of awards. (Emphasis
supplied.)

Pursuant to the above provision of the implementing rules of Executive Order No. 236, s. 2003, the
authority of the Committee on Honors is limited to determining whether the nominations submitted by
a particular awards committee, in this case, the joint NCCA and CCP Boards, have been tainted by
abuse of discretion, and whether the nominees are in good standing. Should the nominations meet
these two criteria, the Committee on Honors shall make a recommendation to the President for
conferment of the Order of National Artists.
In view of the various stages of deliberation in the selection process and as a consequence of
his/her duty to faithfully enforce the relevant laws, the discretion of the President in the matter of the
Order of National Artists is confined to the names submitted to him/her by the NCCA and the CCP
Boards. This means that the President could not have considered conferment of the Order of
National Artists on any person not considered and recommended by the NCCA and the CCP Boards.
That is the proper import of the provision of Executive Order No. 435, s. 2005, that the NCCA and
the CCP "shall advise the President on the conferment of the Order of National Artists." Applying this
to the instant case, the former President could not have properly considered respondents GuidoteAlvarez, Caparas, Maosa and Moreno, as their names were not recommended by the NCCA and
the CCP Boards. Otherwise, not only will the stringent selection and meticulous screening process
be rendered futile, the respective mandates of the NCCA and the CCP Board of Trustees under
relevant laws to administer the conferment of Order of National Artists, draft the rules and
regulations to guide its deliberations, formulate and implement policies and plans, and undertake
any and all necessary measures in that regard will also become meaningless.
Furthermore, with respect to respondent Guidote-Alvarez who was the Executive Director of the
NCCA at that time, the Guidelines expressly provides:
6.5 NCCA and CCP Board members and consultants and NCCA and CCP officers and staff are
automatically disqualified from being nominated.85
Respondent Guidote-Alvarez could not have even been nominated, hence, she was not qualified to
be considered and conferred the Order of National Artists at that time. The Presidents discretion on
the matter does not extend to removing a legal impediment or overriding a legal restriction.
From the foregoing, the advice or recommendation of the NCCA and the CCP Boards as to the
conferment of the Order of National Artists on Conde, Dr. Santos, Francisco and Alcuaz was not
binding on the former President but only discretionary or optional for her whether or not to act on
such advice or recommendation. Also, by virtue of the power of control, the President had the
authority to alter or modify or nullify or set aside such recommendation or advice. It was well within
the Presidents power and discretion to proclaim all, or some or even none of the recommendees of
the CCP and the NCCA Boards, without having to justify his or her action. Thus, the exclusion of
Santos did not constitute grave abuse of discretion on the part of the former President.
The conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas, Maosa
and Moreno was an entirely different matter.
There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal
bias.86
There was a violation of the equal protection clause of the Constitution 87 when the former President
gave preferential treatment to respondents Guidote-Alvarez, Caparas, Maosa and Moreno. The
former Presidents constitutional duty to faithfully execute the laws and observe the rules, guidelines
and policies of the NCCA and the CCP as to the selection of the nominees for conferment of the
1wphi1

Order of National Artists proscribed her from having a free and uninhibited hand in the conferment of
the said award. The manifest disregard of the rules, guidelines and processes of the NCCA and the
CCP was an arbitrary act that unduly favored respondents Guidote-Alvarez, Caparas, Maosa and
Moreno. The conferment of the Order of National Artists on said respondents was therefore made
with grave abuse of discretion and should be set aside.
While the Court invalidates today the proclamation of respondents Guidote-Alvarez, Caparas,
Maosa and Moreno as National Artists, such action should not be taken as a pronouncement on
whether they are worthy to be conferred that honor. Only the President, upon the advise of the
NCCA and the CCP Boards, may determine that. The Court simply declares that, as the former
President committed grave abuse of discretion in issuing Proclamation Nos. 1826 to 1829 dated July
6, 2009, the said proclamations are invalid. However, nothing in this Decision should be read as a
disqualification on the part of respondents Guidote-Alvarez, Caparas, Maosa and Moreno to be
considered for the honor of National Artist in the future, subject to compliance with the laws, rules
and regulations governing said award.
WHEREFORE, the petition is hereby GRANTED in PART. Proclamation Nos. 1826 to 1829 dated
July 6, 2009 proclaiming respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas,
Francisco Maosa, and Jose Moreno, respectively, as National Artists are declared INVALID and
SET ASIDE for having been issued with grave abuse of discretion.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 162272

April 7, 2009

SANTIAGO C. DIVINAGRACIA, Petitioner,


vs.
CONSOLIDATED BROADCASTING SYSTEM, INC. and PEOPLE'S BROADCASTING SERVICE,
INC.,Respondents.
DECISION
TINGA, J.:
Does the National Telecommunications Commission (NTC) have jurisdiction over complaints seeking
the cancellation of certificates of public convenience (CPCs) and other licenses it had issued to the
holders of duly-issued legislative franchises on the ground that the franchisees had violated the
terms of their franchises? The Court, in resolving that question, takes the opportunity to elaborate on
the dynamic behind the regulation of broadcast media in the Philippines, particularly the
interrelationship between the twin franchise and licensing requirements.
I.

Respondents Consolidated Broadcasting System, Inc. (CBS) and Peoples Broadcasting Service,
Inc. (PBS) were incorporated in 1961 and 1965, respectively. Both are involved in the operation of
radio broadcasting services in the Philippines, they being the grantees of legislative franchises by
virtue of two laws, Republic Act (R.A.) No. 7477 and R.A. No. 7582. R.A. No. 7477, enacted on 5
May 1992, granted PBS a legislative franchise to construct, install, maintain and operate radio and
television stations within the Philippines for a period of 25 years. R.A. No. 7582, enacted on 27 May
1992, extended CBSs previous legislative franchise1 to operate radio stations for another 25 years.
The CBS and PBS radio networks are two of the three networks that comprise the well-known
"Bombo Radyo Philippines."2
Section 9 of R.A. No. 7477 and Section 3 of R.A. No. 7582 contain a common provision predicated
on the "constitutional mandate to democratize ownership of public utilities." 3 The common provision
states:
SEC. 9. Democratization of ownership. In compliance with the constitutional mandate to
democratize ownership of public utilities, the herein grantee shall make public offering through the
stock exchanges of at least thirty percent (30%) of its common stocks within a period of three (3)
years from the date of effectivity of this Act: Provided, That no single person or entity shall be
allowed to own more than five percent (5%) of the stock offerings. 4
It further appears that following the enactment of these franchise laws, the NTC issued four (4)
Provisional Authorities to PBS and six (6) Provisional Authorities to CBS, allowing them to install,
operate and maintain various AM and FM broadcast stations in various locations throughout the
nation.5 These Provisional Authorities were issued between 1993 to 1998, or after the enactment of
R.A. No. 7477 and R.A. No. 7582.
Petitioner Santiago C. Divinagracia6 filed two complaints both dated 1 March 1999 with the NTC,
respectively lodged against PBS7 and CBS.8 He alleged that he was "the actual and beneficial owner
of Twelve percent (12%) of the shares of stock" of PBS and CBS separately,9 and that despite the
provisions in R.A. No. 7477 and R.A. No. 7582 mandating the public offering of at least 30% of the
common stocks of PBS and CBS, both entities had failed to make such offering. Thus, Divinagracia
commonly argued in his complaints that the failure on the part of PBS and CBS "to comply with the
mandate of their legislative franchise is a misuse of the franchise conferred upon it by law and it
continues to exercise its franchise in contravention of the law to the detriment of the general public
and of complainant who are unable to enjoy the benefits being offered by a publicly listed
company."10 He thus prayed for the cancellation of all the Provisional Authorities or CPCs of PBS and
CBS on account of the alleged violation of the conditions set therein, as well as in its legislative
franchises.11
On 1 August 2000, the NTC issued a consolidated decision dismissing both complaints. 12 While the
NTC posited that it had full jurisdiction to revoke or cancel a Provisional Authority or CPC for
violations or infractions of the terms and conditions embodied therein, 13 it held that the complaints
actually constituted collateral attacks on the legislative franchises of PBS and CBS since the sole
issue for determination was whether the franchisees had violated the mandate to democratize
ownership in their respective legislative franchises. The NTC ruled that it was not competent to
render a ruling on that issue, the same being more properly the subject of an action for quo
warranto to be commenced by the Solicitor General in the name of the Republic of the Philippines,
pursuant to Rule 66 of the Rules of Court.14

After the NTC had denied Divinagracias motion for reconsideration, 15 he filed a petition for review
under Rule 43 of the Rules of Court with the Court of Appeals.16 On 18 February 2004, the Court of
Appeals rendered a decision17 upholding the NTC. The appellate court agreed with the earlier
conclusion that the complaints were indeed a collateral attack on the legislative franchises of CBS
and PBS and that a quo warranto action was the proper mode to thresh out the issues raised in the
complaints.
Hence this petition, which submits as the principal issue, whether the NTC, with its retinue of
regulatory powers, is powerless to cancel Provisional Authorities and Certificates of Public
Convenience it issued to legislative franchise-holders. That central issue devolves into several
narrower arguments, some of which hinge on the authority of the NTC to cancel the very Provisional
Authorities and CPCs which it is empowered to issue, as distinguished from the legislative franchise
itself, the cancellation of which Divinagracia points out was not the relief he had sought from the
NTC. Questions are raised as to whether the complaints did actually constitute a collateral attack on
the legislative franchises.
Yet this case ultimately rests to a large degree on fundamentals. Divinagracias case rotates on the
singular thesis that the NTC has the power to cancel Provisional Authorities and CPCs, or in effect,
the power to cancel the licenses that allow broadcast stations to operate. The NTC, in its assailed
Decision, expressly admits that it has such power even as it refrained from exercising the
same.18 The Court has yet to engage in a deep inquiry into the question of whether the NTC has the
power to cancel the operating licenses of entities to whom Congress has issued franchises to
operate broadcast stations, especially on account of an alleged violation of the terms of their
franchises. This is the opportune time to examine the issue.
II.
To fully understand the scope and dimensions of the regulatory realm of the NTC, it is essential to
review the legal background of the regulation process. As operative fact, any person or enterprise
which wishes to operate a broadcast radio or television station in the Philippines has to secure a
legislative franchise in the form of a law passed by Congress, and thereafter a license to operate
from the NTC.
The franchise requirement traces its genesis to Act No. 3846, otherwise known as the Radio Control
Act, enacted in 1931.19 Section 1 thereof provided that "[n]o person, firm, company, association or
corporation shall construct, install, establish, or operate x x x a radio broadcasting station, without
having first obtained a franchise therefor from the National Assembly x x x" 20 Section 2 of the law
prohibited the construction or installation of any station without a permit granted by the Secretary of
Public Works and Communication, and the operation of such station without a license issued by the
same Department Secretary.21 The law likewise empowered the Secretary of Public Works and
Communication "to regulate the establishment, use, and operation of all radio stations and of all
forms of radio communications and transmissions within the Philippine Islands and to issue such
rules and regulations as may be necessary."22
Noticeably, our Radio Control Act was enacted a few years after the United States Congress had
passed the Radio Act of 1927. American broadcasters themselves had asked their Congress to step
in and regulate the radio industry, which was then in its infancy. The absence of government
regulation in that market had led to the emergence of hundreds of radio broadcasting stations, each
using frequencies of their choice and changing frequencies at will, leading to literal chaos on the

airwaves. It was the Radio Act of 1927 which introduced a licensing requirement for American
broadcast stations, to be overseen eventually by the Federal Communications Commission (FCC). 23
This pre-regulation history of radio broadcast stations illustrates the continuing necessity of a
government role in overseeing the broadcast media industry, as opposed to other industries such as
print media and the Internet.24Without regulation, the result would be a free-for-all market with rival
broadcasters able with impunity to sabotage the use by others of the airwaves. 25 Moreover, the
airwaves themselves the very medium utilized by broadcastare by their very nature not
susceptible to appropriation, much less be the object of any claim of private or exclusive ownership.
No private individual or enterprise has the physical means, acting alone to actualize exclusive
ownership and use of a particular frequency. That end, desirable as it is among broadcasters, can
only be accomplished if the industry itself is subjected to a regime of government regulation whereby
broadcasters receive entitlement to exclusive use of their respective or particular frequencies, with
the State correspondingly able by force of law to confine all broadcasters to the use of the
frequencies assigned to them.
Still, the dominant jurisprudential rationale for state regulation of broadcast media is more
sophisticated than a mere recognition of a need for the orderly administration of the airwaves. After
all, a united broadcast industry can theoretically achieve that goal through determined selfregulation. The key basis for regulation is rooted in empiricism "that broadcast frequencies are a
scarce resource whose use could be regulated and rationalized only by the Government." This
concept was first introduced in jurisprudence in the U.S. case of Red Lion v. Federal
Communications Commission.26
Red Lion enunciated the most comprehensive statement of the necessity of government oversight
over broadcast media. The U.S. Supreme Court observed that within years from the introduction of
radio broadcasting in the United States, "it became apparent that broadcast frequencies constituted
a scarce resource whose use could be regulated and rationalized only by the Government without
government control, the medium would be of little use because of the cacophony of competing
voices, none of which could be clearly and predictably heard." The difficulties posed by spectrum
scarcity was concretized by the U.S. High Court in this manner:
Scarcity is not entirely a thing of the past. Advances in technology, such as microwave transmission,
have led to more efficient utilization of the frequency spectrum, but uses for that spectrum have also
grown apace. Portions of the spectrum must be reserved for vital uses unconnected with human
communication, such as radio-navigational aids used by aircraft and vessels. Conflicts have even
emerged between such vital functions as defense preparedness and experimentation in methods of
averting midair collisions through radio warning devices. "Land mobile services" such as police,
ambulance, fire department, public utility, and other communications systems have been occupying
an increasingly crowded portion of the frequency spectrum and there are, apart from licensed
amateur radio operators' equipment, 5,000,000 transmitters operated on the "citizens' band" which is
also increasingly congested. Among the various uses for radio frequency space, including marine,
aviation, amateur, military, and common carrier users, there are easily enough claimants to permit
use of the whole with an even smaller allocation to broadcast radio and television uses than now
exists.(citations omitted)27
After interrelating the premise of scarcity of resources with the First Amendment rights of
broadcasters, Red Lionconcluded that government regulation of broadcast media was a necessity:

Where there are substantially more individuals who want to broadcast than there are frequencies to
allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the
right of every individual to speak, write, or publish. If 100 persons want broadcast [395 U.S. 367,
389] licenses but there are only 10 frequencies to allocate, all of them may have the same "right" to
a license; but if there is to be any effective communication by radio, only a few can be licensed and
the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at
protecting and furthering communications, prevented the Government from making radio
communication possible by requiring licenses to broadcast and by limiting the number of licenses so
as not to overcrowd the spectrum.
This has been the consistent view of the Court. Congress unquestionably has the power to grant and
deny licenses and to eliminate existing stations. No one has a First Amendment right to a license or
to monopolize a radio frequency; to deny a station license because "the public interest" requires it "is
not a denial of free speech."
By the same token, as far as the First Amendment is concerned those who are licensed stand no
better than those to whom licenses are refused. A license permits broadcasting, but the licensee has
no constitutional right to be the one who holds the license or to monopolize a radio frequency to the
exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the
Government from requiring a licensee to share his frequency with others and to conduct himself as a
proxy or fiduciary with obligations to present those views and voices which are representative of his
community and which would otherwise, by necessity, be barred from the airwaves. 28
xxxx
Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of
200,000,000, the Government could surely have decreed that each frequency should be shared
among all or some of those who wish to use it, each being assigned a portion of the broadcast day
or the broadcast week. The ruling and regulations at issue here do not go quite so far. They assert
that under specified circumstances, a licensee must offer to make available a reasonable amount of
broadcast time to those who have a view different from that which has already been expressed on
his station. The expression of a political endorsement, or of a personal attack while dealing with a
controversial public issue, simply triggers this time sharing. As we have said, the First Amendment
confers no right on licensees to prevent others from broadcasting on "their" frequencies and no right
to an unconditional monopoly of a scarce resource which the Government has denied others the
right to use.
In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack
and political editorial rules are indistinguishable from the equal-time provision of 315, a specific
enactment of Congress requiring stations to set aside reply time under specified circumstances and
to which the fairness doctrine and these constituent regulations are important complements. That
provision, which has been part of the law since 1927, Radio Act of 1927, 18, 44 Stat. 1170, has
been held valid by this Court as an obligation of the licensee relieving him of any power in any way
to prevent or censor the broadcast, and thus insulating him from liability for defamation. The
constitutionality of the statute under the First Amendment was unquestioned.(citations omitted) 29
As made clear in Red Lion, the scarcity of radio frequencies made it necessary for the government
to step in and allocate frequencies to competing broadcasters. In undertaking that function, the
government is impelled to adjudge which of the competing applicants are worthy of frequency

allocation. It is through that role that it becomes legally viable for the government to impose its own
values and goals through a regulatory regime that extends beyond the assignation of frequencies,
notwithstanding the free expression guarantees enjoyed by broadcasters. As the government is put
in a position to determine who should be worthy to be accorded the privilege to broadcast from a
finite and limited spectrum, it may impose regulations to see to it that broadcasters promote the
public good deemed important by the State, and to withdraw that privilege from those who fall short
of the standards set in favor of other worthy applicants.
Such conditions are peculiar to broadcast media because of the scarcity of the airwaves. Indeed,
any attempt to impose such a regulatory regime on a medium that is not belabored under similar
physical conditions, such as print media, will be clearly antithetical to democratic values and the free
expression clause. This Court, which has adopted the "scarcity of resources" doctrine in cases such
as Telecom. & Broadcast Attys. of the Phils., Inc. v. COMELEC, 30 emphasized the distinction citing
Red Lion:
Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to provide free
air time. They contend that newspapers and magazines are not similarly required as, in fact, in
Philippine Press Institute v. COMELEC we upheld their right to the payment of just compensation for
the print space they may provide under 90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the
same treatment under the free speech guarantee of the Constitution as the print media. There are
important differences in the characteristics of the two media, however, which justify their differential
treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum,
the government must, of necessity, allocate broadcast frequencies to those wishing to use them.
There is no similar justification for government allocation and regulation of the print media.
In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or
licensees. The reason for this is that, as already noted, the government spends public funds for the
allocation and regulation of the broadcast industry, which it does not do in the case of the print
media. To require the radio and television broadcast industry to provide free air time for the
COMELEC Time is a fair exchange for what the industry gets.31
Other rationales may have emerged as well validating state regulation of broadcast media, 32 but the
reality of scarce airwaves remains the primary, indisputable and indispensable justification for the
government regulatory role. The integration of the scarcity doctrine into the jurisprudence on
broadcast media illustrates how the libertarian ideal of the free expression clause may be tempered
and balanced by actualities in the real world while preserving the core essence of the constitutional
guarantee. Indeed, without government regulation of the broadcast spectrum, the ability of
broadcasters to clearly express their views would be inhibited by the anarchy of competition. Since
the airwaves themselves are not susceptible to physical appropriation and private ownership, it is but
indispensable that the government step in as the guardian of the spectrum.
Reference to the scarcity doctrine is necessary to gain a full understanding of the paradigm that
governs the state regulation of broadcast media. That paradigm, as it exists in the United States, is
contextually similar to our own, except in one very crucial regard the dual franchise/license
requirements we impose.
III.

Recall that the Radio Control Act specifically required the obtention of a legislative franchise for the
operation of a radio station in the Philippines. When the Public Service Act was enacted in 1936, the
Public Service Commission (PSC) was vested with jurisdiction over "public services," including over
"wire or wireless broadcasting stations."33However, among those specifically exempted from the
regulatory reach of the PSC were "radio companies, except with respect to the fixing of
rates."34 Thus, following the Radio Control Act, the administrative regulation of "radio companies"
remained with the Secretary of Public Works and Communications. It appears that despite the
advent of commercial television in the 1950s, no corresponding amendment to either the Radio
Control Act or the Public Service Act was passed to reflect that new technology then.
Shortly after the 1972 declaration of martial law, President Marcos issued Presidential Decree (P.D.)
No. 1, which allocated to the Board of Communications the authority to issue CPCs for the operation
of radio and television broadcasting systems and to grant permits for the use of radio frequencies for
such broadcasting systems. In 1974, President Marcos promulgated Presidential Decree No. 576-A,
entitled "Regulating the Ownership and Operation of Radio and Television Stations and for other
Purposes." Section 6 of that law reads:
Section 6. All franchises, grants, licenses, permits, certificates or other forms of authority to operate
radio or television broadcasting systems shall terminate on December 31, 1981. Thereafter,
irrespective of any franchise, grants, license, permit, certificate or other forms of authority to operate
granted by any office, agency or person, no radio or television station shall be authorized to
operated without the authority of the Board of Communications and the Secretary of Public Works
and Communications or their successors who have the right and authority to assign to qualified
parties frequencies, channels or other means of identifying broadcasting
systems; Provided,however, that any conflict over, or disagreement with a decision of the
aforementioned authorities may be appealed finally to the Office of the President within fifteen days
from the date the decision is received by the party in interest.
A few years later, President Marcos promulgated Executive Order (E.O.) No. 546, establishing
among others the National Telecommunications Commission. Section 15 thereof enumerates the
various functions of the NTC.
Section 15. Functions of the Commission. The Commission shall exercise the following functions:
a. Issue Certificate of Public Convenience for the operation of communications utilities and
services, radio communications systems, wire or wireless telephone or telegraph systems,
radio and television broadcasting system and other similar public utilities;
b. Establish, prescribe and regulate areas of operation of particular operators of public
service communications; and determine and prescribe charges or rates pertinent to the
operation of such public utility facilities and services except in cases where charges or rates
are established by international bodies or associations of which the Philippines is a
participating member or by bodies recognized by the Philippine Government as the proper
arbiter of such charges or rates;
c. Grant permits for the use of radio frequencies for wireless telephone and telegraph
systems and radio communication systems including amateur radio stations and radio and
television broadcasting systems;

d. Sub-allocate series of frequencies of bands allocated by the International


Telecommunications Union to the specific services;
e. Establish and prescribe rules, regulations, standards, specifications in all cases related to
the issued Certificate of Public Convenience and administer and enforce the same;
f. Coordinate and cooperate with government agencies and other entities concerned with
any aspect involving communications with a view to continuously improve the
communications service in the country;
g. Promulgate such rules and regulations, as public safety and interest may require, to
encourage a larger and more effective use of communications, radio and television
broadcasting facilities, and to maintain effective competition among private entities in these
activities whenever the Commission finds it reasonably feasible;
h. Supervise and inspect the operation of radio stations and telecommunications facilities;
i. Undertake the examination and licensing of radio operators;
j. Undertake, whenever necessary, the registration of radio transmitters and transceivers;
and
k. Perform such other functions as may be prescribed by law.
These enactments were considered when in 2003 the Court definitively resolved that the operation
of a radio or television station does require a congressional franchise. In Associated
Communications & Wireless Services v. NTC,35 the Court took note of the confusion then within the
broadcast industry as to whether the franchise requirement first ordained in the 1931 Radio Control
Act remained extant given the enactment of P.D. No. 576-A in 1974 and E.O. No. 546 in 1979.
Notably, neither law had specifically required legislative franchises for the operation of broadcast
stations. Nonetheless, the Court noted that Section 1 of P.D. No. 576-A had expressly referred to the
franchise requirement in stating that "[n]o radio station or television channel may obtain a franchise
unless it has sufficient capital on the basis of equity for its operation for at least one
year ."36 Section 6 of that law made a similar reference to the franchise requirement. 37 From those
references, the Court concluded that the franchise requirement under the Radio Control Act was not
repealed by P.D. No. 576-A.38
Turning to E.O. No. 546, the Court arrived at a similar conclusion, despite a Department of Justice
Opinion stating that the 1979 enactment had dispensed with the congressional franchise
requirement. The Court clarified that the 1989 ruling in Albano v. Reyes, to the effect that "franchises
issued by Congress are not required before each and every public utility may operate" did not
dispense with the franchise requirement insofar as broadcast stations are concerned.
Our ruling in Albano that a congressional franchise is not required before "each and every public
utility may operate" should be viewed in its proper light. Where there is a law such as P.D. No. 576-A
which requires a franchise for the operation of radio and television stations, that law must be
followed until subsequently repealed. As we have earlier shown, however, there is nothing in the
subsequent E.O. No. 546 which evinces an intent to dispense with the franchise requirement. In
contradistinction with the case at bar, the law applicable in Albano,i.e., E.O. No. 30, did not require a

franchise for the Philippine Ports Authority to take over, manage and operate the Manila International
Port Complex and undertake the providing of cargo handling and port related services thereat.
Similarly, in Philippine Airlines, Inc. v. Civil Aeronautics Board, et al., we ruled that a legislative
franchise is not necessary for the operation of domestic air transport because "there is nothing in the
law nor in the Constitution which indicates that a legislative franchise is an indispensable
requirement for an entity to operate as a domestic air transport operator." Thus, while it is correct to
say that specified agencies in the Executive Branch have the power to issue authorization for certain
classes of public utilities, this does not mean that the authorization or CPC issued by the NTC
dispenses with the requirement of a franchise as this is clearly required under P.D. No. 576-A. 39
The Court further observed that Congress itself had accepted it as a given that a legislative franchise
is still required to operate a broadcasting station in the Philippines.
That the legislative intent is to continue requiring a franchise for the operation of radio and television
broadcasting stations is clear from the franchises granted by Congress after the effectivity of E.O.
No. 546 in 1979 for the operation of radio and television stations. Among these are: (1) R.A. No.
9131 dated April 24, 2001, entitled "An Act Granting the Iddes Broadcast Group, Inc., a Franchise to
Construct, Install, Establish, Operate and Maintain Radio and Television Broadcasting Stations in the
Philippines"; (2) R.A. No. 9148 dated July 31, 2001, entitled "An Act Granting the Hypersonic
Broadcasting Center, Inc., a Franchise to Construct, Install, Establish, Operate and Maintain Radio
Broadcasting Stations in the Philippines;" and (3) R.A. No. 7678 dated February 17, 1994, entitled
"An Act Granting the Digital Telecommunication Philippines, Incorporated, a Franchise to Install,
Operate and Maintain Telecommunications Systems Throughout the Philippines." All three
franchises require the grantees to secure a CPCN/license/permit to construct and operate their
stations/systems. Likewise, the Tax Reform Act of 1997 provides in Section 119 for tax on franchise
of radio and/or television broadcasting companies x x x 40
Associated Communications makes clear that presently broadcast stations are still required to obtain
a legislative franchise, as they have been so since the passage of the Radio Control Act in 1931. By
virtue of this requirement, the broadcast industry falls within the ambit of Section 11, Article XII of the
1987 Constitution, the one constitutional provision
concerned with the grant of franchises in the Philippines.41 The requirement of a legislative franchise
likewise differentiates the Philippine broadcast industry from that in America, where there is no need
to secure a franchise from the U.S. Congress.
It is thus clear that the operators of broadcast stations in the Philippines must secure a legislative
franchise, a requirement imposed by the Radio Control Act of 1931 and accommodated under the
1987 Constitution. At the same time, the Court in Associated Communications referred to another
form of "permission" required of broadcast stations, that is the CPC issued by the NTC. What is the
source of such requirement?
The Radio Control Act had also obliged radio broadcast stations to secure a permit from the
Secretary of Commerce and Industry42 prior to the construction or installation of any station.43 Said
Department Secretary was also empowered to regulate "the establishment, use and operation of all
radio stations and of all forms of radio communications and
transmission within the Philippines."44 Among the specific powers granted to the Secretary over radio
stations are the approval or disapproval of any application for the construction, installation,

establishment or operation of a radio station45 and the approval or disapproval of any application for
renewal of station or operation license.46
As earlier noted, radio broadcasting companies were exempted from the jurisdiction of the defunct
Public Service Commission except with respect to their rates; thus, they did not fall within the same
regulatory regime as other public services, the regime which was characterized by the need for CPC
or CPCN. However, following the Radio Control Act, it became clear that radio broadcast companies
need to obtain a similar license from the government in order to operate, at that time from the
Department of Public Works and Communications.
Then, as earlier noted, in 1972, President Marcos through P.D. No. 1, transferred to the Board of
Communications the function of issuing CPCs for the operation of radio and television broadcasting
systems, as well as the granting of permits for the use of radio frequencies for such broadcasting
systems. With the creation of the NTC, through E.O. No. 546 in 1979, that agency was vested with
the power to "[i]ssue certificate[s] of public convenience for the operation of radio and television
broadcasting system[s]."47 That power remains extant and undisputed to date.
This much thus is clear. Broadcast and television stations are required to obtain a legislative
franchise, a requirement imposed by the Radio Control Act and affirmed by our ruling in Associated
Broadcasting. After securing their legislative franchises, stations are required to obtain CPCs from
the NTC before they can operate their radio or television broadcasting systems. Such requirement
while traceable also to the Radio Control Act, currently finds its basis in E.O. No. 546, the law
establishing the NTC.
From these same legal premises, the next and most critical question is whether the NTC has the
power to cancel the CPCs it has issued to legislative franchisees.
IV.
The complexities of our dual franchise/license regime for broadcast media should be understood
within the context of separation of powers. The right of a particular entity to broadcast over the
airwaves is established by law i.e., the legislative franchise and determined by Congress, the
branch of government tasked with the creation of rights and obligations. As with all other laws
passed by Congress, the function of the executive branch of government, to which the NTC belongs,
is the implementation of the law. In broad theory, the legal obligation of the NTC once Congress has
established a legislative franchise for a broadcast media station is to facilitate the operation by the
franchisee of its broadcast stations. However, since the public administration of the airwaves is a
requisite for the operation of a franchise and is moreover a highly technical function, Congress has
delegated to the NTC the task of administration over the broadcast spectrum, including the
determination of available bandwidths and the allocation of such available bandwidths among the
various legislative franchisees. The licensing power of the NTC thus arises from the necessary
delegation by Congress of legislative power geared towards the orderly exercise by franchisees of
the rights granted them by Congress.
Congress may very well in its wisdom impose additional obligations on the various franchisees and
accordingly delegate to the NTC the power to ensure that the broadcast stations comply with their
obligations under the law. Because broadcast media enjoys a lesser degree of free expression
protection as compared to their counterparts in print, these legislative restrictions are generally
permissible under the Constitution. Yet no enactment of Congress may contravene the Constitution

and its Bill of Rights; hence, whatever restrictions are imposed by Congress on broadcast media
franchisees remain susceptible to judicial review and analysis under the jurisprudential framework
for scrutiny of free expression cases involving the broadcast media.
The restrictions enacted by Congress on broadcast media franchisees have to pass the mettle of
constitutionality. On the other hand, the restrictions imposed by an administrative agency such as
the NTC on broadcast media franchisees will have to pass not only the test of constitutionality, but
also the test of authority and legitimacy, i.e., whether such restrictions have been imposed in the
exercise of duly delegated legislative powers from Congress. If the restriction or sanction imposed
by the administrative agency cannot trace its origin from legislative delegation, whether it is by virtue
of a specific grant or from valid delegation of rule-making power to the administrative agency, then
the action of such administrative agency cannot be sustained. The life and authority of an
administrative agency emanates solely from an Act of Congress, and its faculties confined within the
parameters set by the legislative branch of government.
We earlier replicated the various functions of the NTC, as established by E.O. No. 546. One can
readily notice that even as the NTC is vested with the power to issue CPCs to broadcast stations, it
is not expressly vested with the power to cancel such CPCs, or otherwise empowered to prevent
broadcast stations with duly issued franchises and CPCs from operating radio or television stations.

1avvphi1

In contrast, when the Radio Control Act of 1931 maintained a similar requirement for radio stations to
obtain a license from a government official (the Secretary of Commerce and Industry), it similarly
empowered the government, through the Secretary of Public Works and Communications, to
suspend or revoke such license, as indicated in Section 3(m):
Section 3. The Secretary of Public Works and Communications is hereby empowered, to regulate
the construction or manufacture, possession, control, sale and transfer of radio transmitters or
transceivers (combination transmitter-receiver) and the establishment, use, the operation of all radio
stations and of all form of radio communications and transmissions within the Philippines. In addition
to the above he shall have the following specific powers and duties:
(m) He may, at his direction bring criminal action against violators of the radio laws or the regulations
and confiscate the radio apparatus in case of illegal operation; or simply suspend or revoke the
offenders station or operator licenses or refuse to renew such licenses; or just reprimand and warn
the offenders;48
Section 3(m) begets the question did the NTC retain the power granted in 1931 to the Secretary of
Public Works and Communications to "x x x suspend or revoke the offenders station or operator
licenses or refuse to renew such licenses"? We earlier adverted to the statutory history. The
enactment of the Public Service Act in 1936 did not deprive the Secretary of regulatory jurisdiction
over radio stations, which included the power to impose fines. In fact, the Public Service
Commission was precluded from exercising such jurisdiction, except with respect to the fixing of
rates.
Then, in 1972, the regulatory authority over broadcast media was transferred to the Board of
Communications by virtue of P. D. No. 1, which adopted, approved, and made as part of the law of
the land the Integrated Reorganization Plan which was prepared by the Commission on
Reorganization.49 Among the cabinet departments affected by the plan was the Department of Public
Works and Communications, which was now renamed the Department of Public Works,

Transportation and Communication.50 New regulatory boards under the administrative supervision of
the Department were created, including the Board of Communications. 51
The functions of the Board of Communications were enumerated in Part X, Chapter I, Article III, Sec.
5 of the Integrated Reorganization Plan.52 What is noticeably missing from these enumerated
functions of the Board of Communications is the power to revoke or cancel CPCs, even as the Board
was vested the power to issue the same. That same pattern held true in 1976, when the Board of
Communications was abolished by E.O. No. 546.53 Said executive order, promulgated by then
President Marcos in the exercise of his legislative powers, created the NTC but likewise withheld
from it the authority to cancel licenses and CPCs, even as it was empowered to issue CPCs. Given
the very specific functions allocated by law to the NTC, it would be very difficult to recognize any
intent to allocate to the Commission such regulatory functions previously granted to the Secretary of
Public Works and Communications, but not included in the exhaustive list of functions enumerated in
Section 15.
Certainly, petitioner fails to point to any provision of E.O. No. 546 authorizing the NTC to cancel
licenses. Neither does he cite any provision under P.D. No. 1 or the Radio Control Act, even if
Section 3(m) of the latter law provides at least, the starting point of a fair argument. Instead,
petitioner relies on the power granted to the Public Service Commission to revoke CPCs or CPCNs
under Section 16(m) of the Public Service Act.54 That argument has been irrefragably refuted by
Section 14 of the Public Service Act, and by jurisprudence, most especially RCPI v. NTC. 55 As earlier
noted, at no time did radio companies fall under the jurisdiction of the Public Service Commission as
they were expressly excluded from its mandate under Section 14. In addition, the Court ruled in
RCPI that since radio companies, including broadcast stations and telegraphic agencies, were never
under the jurisdiction of the Public Service Commission except as to rate-fixing, that Commissions
authority to impose fines did not carry over to the NTC even while the other regulatory agencies that
emanated from the Commission did retain the previous authority their predecessor had
exercised.56 No provision in the Public Service Act thus can be relied upon by the petitioner to claim
that the NTC has the authority to cancel CPCs or licenses.
It is still evident that E.O. No. 546 provides no explicit basis to assert that the NTC has the power to
cancel the licenses or CPCs it has duly issued, even as the government office previously tasked with
the regulation of radio stations, the Secretary of Public Works and Communications, previously
possessed such power by express mandate of law. In order to sustain petitioners premise, the Court
will be unable to rely on an unequivocally current and extant provision of law that justifies the NTCs
power to cancel CPCs. Petitioner suggests that since the NTC has the power to issue CPCs, it
necessarily has the power to revoke the same. One might also argue that through the general rulemaking power of the NTC, we can discern a right of the NTC to cancel CPCs.
We must be mindful that the issue for resolution is not a run-of-the-mill matter which would be settled
with ease with the application of the principles of statutory construction. It is at this juncture that the
constitutional implications of this case must ascend to preeminence.
A.
It is beyond question that respondents, as with all other radio and television broadcast stations, find
shelter in the Bill of Rights, particularly Section 3, Article III of the Constitution. At the same time, as
we have labored earlier to point out, broadcast media stands, by reason of the conditions of scarcity,

within a different tier of protection from print media, which unlike broadcast, does not have any
regulatory interaction with the government during its operation.
Still, the fact that state regulation of broadcast media is constitutionally justified does not mean that
its practitioners are precluded from invoking Section 3, Article III of the Constitution in their behalf.
Far from it. Our democratic way of life is actualized by the existence of a free press, whether print
media or broadcast media. As with print media, free expression through broadcast media is
protected from prior restraint or subsequent punishment. The franchise and licensing requirements
are mainly impositions of the laws of physics which would stand to periodic reassessment as
technology advances. The science of today renders state regulation as a necessity, yet this should
not encumber the courts from accommodating greater freedoms to broadcast media when doing so
would not interfere with the existing legitimate state interests in regulating the industry.
In FCC v. League of Women Voters of California,57 the U.S. Supreme Court reviewed a law
prohibiting noncommercial broadcast stations that received funding from a public corporation from
"engaging in editorializing." The U.S. Supreme Court acknowledged the differentiated First
Amendment standard of review that applied to broadcast media. Still, it struck down the restriction,
holding that "[the] regulation impermissibly sweeps within its prohibition a wide range of speech by
wholly private stations on topics that do not take a directly partisan stand or that have nothing
whatever to do with federal, state, or local government." 58 We are similarly able to maintain fidelity to
the fundamental rights of broadcasters even while upholding the rationale behind the regulatory
regime governing them.
Should petitioners position that the NTC has the power to cancel CPCs or licenses it has issued to
broadcast stations although they are in the first place empowered by their respective franchise to
exercise their rights to free expression and as members of a free press, be adopted broadcast media
would be encumbered by another layer of state restrictions. As things stand, they are already
required to secure a franchise from Congress and a CPC from the NTC in order to operate. Upon
operation, they are obliged to comply with the various regulatory issuances of the NTC, which has
the power to impose fees and fines and other mandates it may deem fit to prescribe in the exercise
of its rule-making power.
The fact that broadcast media already labors under this concededly valid regulatory framework
necessarily creates inhibitions on its practitioners as they operate on a daily basis. Newspapers are
able to print out their daily editions without fear that a government agency such as the NTC will be
able to suspend their publication or fine them based on their content. Broadcast stations do already
operate with that possibility in mind, and that circumstance ineluctably restrains its content,
notwithstanding the constitutional right to free expression. However, the cancellation of a CPC or
license to operate of a broadcast station, if we recognize that possibility, is essentially a death
sentence, the most drastic means to inhibit a broadcast media practitioner from exercising the
constitutional right to free speech, expression and of the press.
This judicial philosophy aligns well with the preferred mode of scrutiny in the analysis of cases with
dimensions of the right to free expression. When confronted with laws dealing with freedom of the
mind or restricting the political process, of laws dealing with the regulation of speech, gender, or race
as well as other fundamental rights as expansion from its earlier applications to equal protection, the
Court has deemed it appropriate to apply "strict scrutiny" when assessing the laws involved or the
legal arguments pursued that would diminish the efficacy of such constitutional right. The assumed
authority of the NTC to cancel CPCs or licenses, if sustained, will create a permanent atmosphere of

a less free right to express on the part of broadcast media. So that argument could be sustained, it
will have to withstand the strict scrutiny from this Court.
Strict scrutiny entails that the presumed law or policy must be justified by a compelling state or
government interest, that such law or policy must be narrowly tailored to achieve that goal or
interest, and that the law or policy must be the least restrictive means for achieving that interest. It is
through that lens that we examine petitioners premise that the NTC has the authority to cancel
licenses of broadcast franchisees.
B.
In analyzing the compelling government interest that may justify the investiture of authority on the
NTC advocated by petitioner, we cannot ignore the interest of the State as expressed in the
respective legislative franchises of the petitioner, R.A. No. 7477 and R. A. Act No. 7582. Since
legislative franchises are extended through statutes, they should receive recognition as the ultimate
expression of State policy. What the legislative franchises of respondents express is that the
Congress, after due debate and deliberation, declares it as State policy that respondents should
have the right to operate broadcast stations. The President of the Philippines, by affixing his
signature to the law, concurs in such State policy.
Allowing the NTC to countermand State policy by revoking respondents vested legal right to operate
broadcast stations unduly gives to a mere administrative agency veto power over the implementation
of the law and the enforcement of especially vested legal rights. That concern would not arise if
Congress had similarly empowered the NTC with the power to revoke a franchisees right to operate
broadcast stations. But as earlier stated, there is no such expression in the law, and by presuming
such right the Court will be acting contrary to the stated State interest as expressed in respondents
legislative franchises.
If we examine the particular franchises of respondents, it is readily apparent that Congress has
especially invested the NTC with certain powers with respect to their broadcast operations. Both
R.A. No. 747759 and R.A. No. 758260 require the grantee "to secure from the [NTC] the appropriate
permits and licenses for its stations," barring the private respondents from "using any frequency in
the radio spectrum without having been authorized by the [NTC]." At the same time, both laws
provided that "[the NTC], however, shall not unreasonably withhold or delay the grant of any such
authority."
An important proviso is stipulated in the legislative franchises, particularly under Section 5 of R.A.
No. 7477 and Section 3 of R.A. No. 7582, in relation to Section 11 of R.A. No. 3902.
Section 5. Right of Government. A special right is hereby reserved to the President of the
Philippines, in times of rebellion, public peril, calamity, emergency, disaster or disturbance of peace
and order, to temporarily take over and operate the stations of the grantee, temporarily suspend the
operation of any stations in the interest of public safety, security and public welfare, or authorize the
temporary use and operation thereof by any agency of the Government, upon due compensation to
the grantee, for the use of said stations during the period when they shall be so operated.
The provision authorizes the President of the Philippines to exercise considerable infringements on
the right of the franchisees to operate their enterprises and the right to free expression. Such
authority finds corollary constitutional justification as well under Section 17, Article XII, which allows

the State "in times of national emergency, when the public interest so requires x x x during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately-owned public utility or business affected with public interest." We do not
doubt that the President or the State can exercise such authority through the NTC, which remains an
agency within the executive branch of government, but such can be exercised only under limited and
rather drastic circumstances. They still do not vest in the NTC the broad authority to cancel licenses
and permits.
These provisions granting special rights to the President in times of emergency are incorporated in
our understanding of the legislated state policy with respect to the operation by private respondents
of their legislative franchises. There are restrictions to the operation of such franchises, and when
these restrictions are indeed exercised there still may be cause for the courts to review whether said
limitations are justified despite Section 3, Article I of the Constitution. At the same time, the state
policy as embodied in these franchises is to restrict the governments ability to impair the freedom to
broadcast of the stations only upon the occurrence of national emergencies or events that
compromise the national security.
It should be further noted that even the aforequoted provision does not authorize the President or
the government to cancel the licenses of the respondents. The temporary nature of the takeover or
closure of the station is emphasized in the provision. That fact further disengages the provision from
any sense that such delegated authority can be the source of a broad ruling affirming the right of the
NTC to cancel the licenses of franchisees.
With the legislated state policy strongly favoring the unimpeded operation of the franchisees
stations, it becomes even more difficult to discern what compelling State interest may be fulfilled in
ceding to the NTC the general power to cancel the franchisees CPCs or licenses absent explicit
statutory authorization. This absence of a compelling state interest strongly disfavors petitioners
cause.
C.
Now, we shall tackle jointly whether a law or policy allowing the NTC to cancel CPCs or licenses is to
be narrowly tailored to achieve that requisite compelling State goal or interest, and whether such a
law or policy is the least restrictive means for achieving that interest. We addressed earlier the
difficulty of envisioning the compelling State interest in granting the NTC such authority. But let us
assume for arguments sake, that relieving the injury complained off by petitioner the failure of
private respondents to open up ownership through the initial public offering mandated by law is a
compelling enough State interest to allow the NTC to extend consequences by canceling the
licenses or CPCs of the erring franchisee.
There is in fact a more appropriate, more narrowly-tailored and least restrictive remedy that is
afforded by the law. Such remedy is that adverted to by the NTC and the Court of Appeals the
resort to quo warranto proceedings under Rule 66 of the Rules of Court.
Under Section 1 of Rule 66, "an action for the usurpation of a public office, position or franchise may
be brought in the name of the Republic of the Philippines against a person who usurps, intrudes into,
or unlawfully holds or exercises public office, position or franchise." 61 Even while the action is
maintained in the name of the Republic62, the Solicitor General or a public prosecutor is obliged to

commence such action upon complaint, and upon good reason to believe that any case specified
under Section 1 of Rule 66 can be established by proof. 63
The special civil action of quo warranto is a prerogative writ by which the Government can call upon
any person to show by what warrant he holds a public office or exercises a public franchise. 64 It is
settled that "[t]he determination of the right to the exercise of a franchise, or whether the right to
enjoy such privilege has been forfeited by non-user, is more properly the subject of the prerogative
writ of quo warranto, the right to assert which, as a rule, belongs to the State upon complaint or
otherwise, the reason being that the abuse of a franchise is a public wrong and not a private
injury."65 A forfeiture of a franchise will have to be declared in a direct proceeding for the purpose
brought by the State because a franchise is granted by law and its unlawful exercise is primarily a
concern of Government.66 Quo warranto is specifically available as a remedy if it is thought that a
government corporation has offended against its corporate charter or misused its franchise. 67
The Court of Appeals correctly noted that in PLDT v. NTC,68 the Court had cited quo warranto as the
appropriate recourse with respect to an allegation by petitioner therein that a rival
telecommunications competitor had failed to construct its radio system within the ten (10) years from
approval of its franchise, as mandated by its legislative franchise.69 It is beyond dispute that quo
warranto exists as an available and appropriate remedy against the wrong imputed on private
respondents.
Petitioners argue that since their prayer involves the cancellation of the provisional authority and
CPCs, and not the legislative franchise, then quo warranto fails as a remedy. The argument is
artificial. The authority of the franchisee to engage in broadcast operations is derived in the
legislative mandate. To cancel the provisional authority or the CPC is, in effect, to cancel the
franchise or otherwise prevent its exercise. By law, the NTC is incapacitated to frustrate such
mandate by unduly withholding or canceling the provisional authority or the CPC for reasons other
than the orderly administration of the frequencies in the radio spectrum.
What should occur instead is the converse. If the courts conclude that private respondents have
violated the terms of their franchise and thus issue the writs of quo warranto against them, then the
NTC is obliged to cancel any existing licenses and CPCs since these permits draw strength from the
possession of a valid franchise. If the point has not already been made clear, then licenses issued by
the NTC such as CPCs and provisional authorities are junior to the legislative franchise enacted by
Congress. The licensing authority of the NTC is not on equal footing with the franchising authority of
the State through Congress. The issuance of licenses by the NTC implements the legislative
franchises established by Congress, in the same manner that the executive branch implements the
laws of Congress rather than creates its own laws. And similar to the inability of the executive branch
to prevent the implementation of laws by Congress, the NTC cannot, without clear and proper
delegation by Congress, prevent the exercise of a legislative franchise by withholding or canceling
the licenses of the franchisee.
And the role of the courts, through quo warranto proceedings, neatly complements the traditional
separation of powers that come to bear in our analysis. The courts are entrusted with the
adjudication of the legal status of persons, the final arbiter of their rights and obligations under law.
The question of whether a franchisee is in breach of the franchise specially enacted for it by
Congress is one inherently suited to a court of law, and not for an administrative agency, much less
one to which no such function has been delegated by Congress. In the same way that availability of
judicial review over laws does not preclude Congress from undertaking its own remedial measures

by appropriately amending laws, the viability of quo warranto in the instant cases does not preclude
Congress from enforcing its own prerogative by abrogating the legislative franchises of respondents
should it be distressed enough by the franchisees violation of the franchises extended to them.
Evidently, the suggested theory of petitioner to address his plaints simply overpowers the delicate
balance of separation of powers, and unduly grants superlative prerogatives to the NTC to frustrate
the exercise of the constitutional freedom speech, expression, and of the press. A more narrowlytailored relief that is responsive to the cause of petitioner not only exists, but is in fact tailor-fitted to
the constitutional framework of our government and the adjudication of legal and constitutional
rights. Given the current status of the law, there is utterly no reason for this Court to subscribe to the
theory that the NTC has the presumed authority to cancel licenses and CPCs issued to due holders
of legislative franchise to engage in broadcast operations.
V.
An entire subset of questions may arise following this decision, involving issues or situations not
presently before us. We wish to make clear that the only aspect of the regulatory jurisdiction of the
NTC that we are ruling upon is its presumed power to cancel provisional authorities, CPCs or
CPCNs and other such licenses required of franchisees before they can engage in broadcast
operations. Moreover, our conclusion that the NTC has no such power is borne not simply from the
statutory language of E.O. No. 546 or the respective stipulations in private respondents franchises,
but moreso, from the application of the strict scrutiny standard which, despite its weight towards free
speech, still involves the analysis of the competing interests of the regulator and the regulated.
In resolving the present questions, it was of marked impact to the Court that the presumed power to
cancel would lead to utterly fatal consequences to the constitutional right to expression, as well as
the legislated right of these franchisees to broadcast. Other regulatory measures of less drastic
impact will have to be assessed on their own terms in the proper cases, and our decision today
should not be accepted or cited as a blanket shearing of the NTCs regulatory jurisdiction. In
addition, considering our own present recognition of legislative authority to regulate broadcast media
on terms more cumbersome than print media, it should not be discounted that Congress may enact
amendments to the organic law of the NTC that would alter the legal milieu from which we
adjudicated today.
1avvphi1.zw+

Still, the Court sees all benefit and no detriment in striking this blow in favor of free expression and of
the press. While the ability of the State to broadly regulate broadcast media is ultimately dictated by
physics, regulation with a light touch evokes a democracy mature enough to withstand competing
viewpoints and tastes. Perhaps unwittingly, the position advocated by petitioner curdles a most vital
sector of the press broadcast media within the heavy hand of the State. The argument is not
warranted by law, and it betrays the constitutional expectations on this Court to assert lines not
drawn and connect the dots around throats that are free to speak.
WHEREFORE, the instant petition is DENIED. No pronouncement as to costs.
SO ORDERED.

POLITICAL QUESTIONS
EN BANC

[G.R. No. 118295. May 2, 1997]

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as


members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and
HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES
UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION,
CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES,
LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE
RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG
KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various
taxpayers and as non-governmental organizations, petitioners,
vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOSSHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO
BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE
LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO,
BLAS OPLE, JOHN OSMEA, SANTANINA RASUL, RAMON
REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE
WEBB, in their respective capacities as members of the
Philippine Senate who concurred in the ratification by the
President of the Philippines of the Agreement Establishing the

World Trade Organization; SALVADOR ENRIQUEZ, in his


capacity as Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of
Agriculture; ROBERTO DE OCAMPO, in his capacity as
Secretary of Finance; ROBERTO ROMULO, in his capacity as
Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his
capacity as Executive Secretary, respondents.
DECISION
PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries has revolutionized international
business and economic relations amongst states. It has irreversibly propelled the world
towards trade liberalization and economic globalization. Liberalization, globalization,
deregulation and privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national economies like tariffs, export
subsidies, import quotas, quantitative restrictions, tax exemptions and currency
controls.Finding market niches and becoming the best in specific industries in a marketdriven and export-oriented global scenario are replacing age-old beggar-thy-neighbor
policies that unilaterally protect weak and inefficient domestic producers of goods and
services. In the words of Peter Drucker, the well-known management guru, Increased
participation in the world economy has become the key to domestic economic growth
and prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World
War, plans for the establishment of three multilateral institutions -- inspired by that grand
political body, the United Nations -- were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with currency problems; and the
third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite
challenge, even retaliation, from other states. However, for a variety of reasons,
including its non-ratification by the United States, the ITO, unlike the IMF and WB, never
took off. What remained was only GATT -- the General Agreement on Tariffs and
Trade. GATT was a collection of treaties governing access to the economies of treaty

adherents with no institutionalized body administering the agreements or dependable


system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave birth
to that administering body -- the World Trade Organization -- with the signing of the
Final Act in Marrakesh, Morocco and the ratification of the WTO Agreement by its
members.
[1]

Like many other developing countries, the Philippines joined WTO as a founding
member with the goal, as articulated by President Fidel V. Ramos in two letters to the
Senate (infra), of improving Philippine access to foreign markets, especially its major
trading partners, through the reduction of tariffs on its exports, particularly agricultural
and industrial products. The President also saw in the WTO the opening of new
opportunities for the services sector x x x, (the reduction of) costs and uncertainty
associated with exporting x x x, and (the attraction of) more investments into the
country. Although the Chief Executive did not expressly mention it in his letter, the
Philippines - - and this is of special interest to the legal profession - - will benefit from
the WTO system of dispute settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal. Heretofore, trade disputes were settled mainly through negotiations where
solutions were arrived at frequently on the basis of relative bargaining strengths, and
where naturally, weak and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines to place nationals and
products of member-countries on the same footing as Filipinos and local products and
(2) that the WTO intrudes, limits and/or impairs the constitutional powers of both
Congress and the Supreme Court, the instant petition before this Court assails the WTO
Agreement for violating the mandate of the 1987 Constitution to develop a self-reliant
and independent national economy effectively controlled by Filipinos x x x (to) give
preference to qualified Filipinos (and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation in
worldwide trade liberalization and economic globalization? Does it prescribe Philippine
integration into a global economy that is liberalized, deregulated and privatized? These
are the main questions raised in this petition for certiorari, prohibition
and mandamusunder Rule 65 of the Rules of Court praying (1) for the nullification, on
constitutional grounds, of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its
implementation and enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of government
properties and resources by respondent-heads of various executive offices concerned

therewith. This concurrence is embodied in Senate Resolution No. 97, dated December
14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
the Department of Trade and Industry (Secretary Navarro, for brevity), representing the
Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final
Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act,
for brevity).
By signing the Final Act, Secretary Navarro on behalf of the Republic of the
Philippines, agreed:
[2]

(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement in
accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated
August 11, 1994 from the President of the Philippines, stating among others that the
Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution.
[3]

On August 13, 1994, the members of the Philippine Senate received another letter
from the President of the Philippines likewise dated August 11, 1994, which stated
among others that the Uruguay Round Final Act, the Agreement Establishing the World
Trade Organization, the Ministerial Declarations and Decisions, and the Understanding
on Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
[4]

On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled Concurring in the Ratification of
the Agreement Establishing the World Trade Organization.
[5]

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the
ratification by the President of the Philippines of the Agreement Establishing the World
Trade Organization. The text of the WTO Agreement is written on pages 137 et seq. of
Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments (identified in the said
Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral
Trade Agreements, for brevity) as follows:
[6]

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods


General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the General on
Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the Settlement
of Disputes
ANNEX 3

Trade Policy Review Mechanism


On December 16, 1994, the President of the Philippines signed the Instrument of
Ratification, declaring:
[7]

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the


Republic of the Philippines, after having seen and considered the aforementioned
Agreement Establishing the World Trade Organization and the agreements and
associated legal instruments included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15
April 1994, do hereby ratify and confirm the same and every Article and Clause
thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is
composed of the Agreement Proper and the associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement which are integral parts
thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not only the
WTO Agreement (and its integral annexes aforementioned) but also (1) the Ministerial
Declarations and Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996, the Solicitor General describes
these two latter documents as follows:
[8]

The Ministerial Decisions and Declarations are twenty-five declarations and decisions
on a wide range of matters, such as measures in favor of least developed countries,
notification procedures, relationship of WTO with the International Monetary Fund
(IMF), and agreements on technical barriers to trade and on dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other
things, standstill or limitations and qualifications of commitments to existing nonconforming measures, market access, national treatment, and definitions of nonresident supplier of financial services, commercial presence and new financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on
respondents comment and petitioners reply thereto, the Court resolved on December
12, 1995, to give due course to the petition, and the parties thereafter filed their
respective memoranda. The Court also requested the Honorable Lilia R. Bautista, the
Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to
submit a paper, hereafter referred to as Bautista Paper, for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
[9]

During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996, he listed the various
bilateral or multilateral treaties or international instruments involving derogation of
Philippine sovereignty. Petitioners, on the other hand, submitted their Compliance dated
January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as
follows:

A. Whether the petition presents a political question or is otherwise not justiciable.


B. Whether the petitioner members of the Senate who participated in the
deliberations and voting leading to the concurrence are estopped from
impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade
Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and
12, Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is vested in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the World Trade
Organization interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they voted for

concurrence in the ratification of the constitutionally-infirm Agreement


Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they concurred
only in the ratification of the Agreement Establishing the World Trade
Organization, and not with the Presidential submission which included the
Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents synthesized the
several issues raised by petitioners into the following:
[10]

1. Whether or not the provisions of the Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement cited by petitioners directly
contravene or undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the ratification by the President of
the Philippines of the Agreement establishing the World Trade Organization implied
rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by petitioners,
the Solicitor General has effectively ignored three, namely: (1) whether the petition
presents a political question or is otherwise not justiciable; (2) whether petitionermembers of the Senate (Wigberto E. Taada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-members of the Senate
acted in grave abuse of discretion when they voted for concurrence in the ratification of
the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:

(1) The political question issue -- being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this case
-- was deliberated upon by the Court and will thus be ruled upon as the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and
the respondents have effectively waived it by not pursuing it in any of their pleadings;
in any event, this issue, even if ruled in respondents favor, will not cause the petitions
dismissal as there are petitioners other than the two senators, who are not vulnerable
to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be taken up as an integral part of the disposition of the four issues raised
by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not
question the locus standi of petitioners. Hence, they are also deemed to have waived
the benefit of such issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international commitments of the nation are
involved here, and that transcendental public interest requires that the substantive
issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters.
[11]

To recapitulate, the issues that will be ruled upon shortly are:


(1)

DOES
THE
PETITION
PRESENT
A
JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF
THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE
OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON
EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS,
AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute. The question thus posed is judicial rather than

political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. Once a controversy as to the application or interpretation of a
constitutional provision is raised before this Court (as in the instant case), it becomes a
legal issue which the Court is bound by constitutional mandate to decide.
[12]

[13]

The jurisdiction of this Court to adjudicate the matters raised in the petition is
clearly set out in the 1987 Constitution, as follows:
[14]

[15]

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial departments duty and power to strike
down grave abuse of discretion on the part of any branch or instrumentality of
government including Congress. It is an innovation in our political law. As explained by
former Chief Justice Roberto Concepcion, the judiciary is the final arbiter on the
question of whether or not a branch of government or any of its officials has acted
without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.
[16]

[17]

As this Court has repeatedly and firmly emphasized in many cases, it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government.
[18]

As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate remedy in the ordinary course of law, we have no hesitation at all in
holding that this petition should be given due course and the vital questions raised
therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition
andmandamus are appropriate remedies to raise constitutional issues and to review
and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this, we
have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court
will not review the wisdom of the decision of the President and the Senate in enlisting
the country into the WTO, or pass upon the merits of trade liberalization as a policy
espoused by said international body. Neither will it rule on the propriety of the
governments economic policy of reducing/removing tariffs, taxes, subsidies, quantitative
restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional
duty to determine whether or not there had been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the Senate in ratifying the WTO
Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution
mandating economic nationalism are violated by the so-called parity provisions and
national treatment clauses scattered in various parts not only of the WTO Agreement
and its annexes but also in the Ministerial Decisions and Declarations and in the
Understanding on Commitments in Financial Services.
Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II,
and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:

Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx xx xx

Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
xx xx xx xx

Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx

Sec. 10. x x x. The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xx xx xx xx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the
following WTO provisions quoted in their memorandum:
[19]

a) In the area of investment measures related to trade in goods (TRIMS, for


brevity):

Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994. no
Member shall apply any TRIM that is inconsistent with the provisions of
Article III or Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the obligations of
general elimination of quantitative restrictions provided for in paragraph I of
Article XI of GATT 1994 is contained in the Annex to this
Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments, p.22121, emphasis supplied).
The Annex referred to reads as follows:

ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment
provided for in paragraph 4 of Article III of GATT 1994 include those
which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an
advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or from
any domestic source, whether specified in terms of particular products, in
terms of volume or value of products, or in terms of proportion of volume
or value of its local production; or
(b) that an enterprises purchases or use of imported products be limited to an
amount related to the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph 1 of Article XI of GATT
1994 include those which are mandatory or enforceable under domestic laws or
under administrative rulings, or compliance with which is necessary to obtain
an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local
production that it exports;

(b) the importation by an enterprise of products used in or related to its local


production by restricting its access to foreign exchange inflows attributable
to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products,
in terms of volume or value of products, or in terms of a preparation of
volume or value of its local production. (Annex to the Agreement on TradeRelated Investment Measures, Vol. 27, Uruguay Round Legal Documents,
p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that
accorded to like products of national origin in respect of laws, regulations and
requirements affecting their internal sale, offering for sale, purchase, transportation,
distribution or use. the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based exclusively on the
economic operation of the means of transport and not on the nationality of the
product. (Article III, GATT 1947, as amended by the Protocol Modifying Part II, and
Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph
1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round,
Legal Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):
Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
intellectual property...(par. 1, Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable than it accords to its
own like services and service suppliers.

2. A Member may meet the requirement of paragraph I by according to


services and service suppliers of any other Member, either formally
identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be
less favourable if it modifies the conditions of completion in favour of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII, General Agreement
on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).
It is petitioners position that the foregoing national treatment and parity provisions of
the WTO Agreement place nationals and products of member countries on the same
footing as Filipinos and local products, in contravention of the Filipino First policy of the
Constitution. They allegedly render meaningless the phrase effectively controlled by
Filipinos. The constitutional conflict becomes more manifest when viewed in the context
of the clear duty imposed on the Philippines as a WTO member to ensure the
conformity of its laws, regulations and administrative procedures with its obligations as
provided in the annexed agreements. Petitioners further argue that these provisions
contravene constitutional limitations on the role exports play in national development
and negate the preferential treatment accorded to Filipino labor, domestic materials and
locally produced goods.
[20]

On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that
these nationalistic portions of the Constitution invoked by petitioners should not be read
in isolation but should be related to other relevant provisions of Art. XII, particularly
Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with
the Constitution; and (4) that the WTO Agreement contains sufficient provisions to
protect developing countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a declaration of principles and state
policies. The counterpart of this article in the 1935 Constitution is called the basic
political creed of the nation by Dean Vicente Sinco. These principles in Article II are
not intended to be self-executing principles ready for enforcement through the courts.
They are used by the judiciary as aids or as guides in the exercise of its power of
judicial review, and by the legislature in its enactment of laws. As held in the leading
case ofKilosbayan, Incorporated vs. Morato, the principles and state policies
enumerated in Article II and some sections of Article XII are not self-executing
[21]

[22]

[23]

[24]

provisions, the disregard of which can give rise to a cause of action in the courts. They
do not embody judicially enforceable constitutional rights but guidelines for legislation.
In the same light, we held in Basco vs. Pagcor that broad constitutional principles
need legislative enactments to implement them, thus:
[25]

On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12


(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article
XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely statements of principles and policies. As
such, they are basically not self-executing, meaning a law should be passed by
Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing
principles ready for enforcement through the courts. They were rather directives
addressed to the executive and to the legislature. If the executive and the legislature
failed to heed the directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of broad
constitutional principles are sourced from basic considerations of due process and the
lack of judicial authority to wade into the uncharted ocean of social and economic policy
making. Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa vs.
Factoran, Jr., explained these reasons as follows:
[26]

My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right -- a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution -- that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment granting all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an effective opportunity so
to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a
cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless the legal right claimed
to have been violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration -- where a specific violation of law or


applicable regulation is not alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second paragraph of Section 1 of
Article VIII of the Constitution which reads:
Section 1. x x x
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphases supplied)
When substantive standards as general as the right to a balanced and healthy ecology
and the right to health are combined with remedial standards as broad ranging as a
grave abuse of discretion amounting to lack or excess of jurisdiction, the result will
be, it is respectfully submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of environmental
protection and management, our courts have no claim to special technical competence
and experience and professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments -- the legislative and
executive departments -- must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before the courts
should intervene.
Economic Nationalism Should Be Read with Other Constitutional Mandates to
Attain Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down
general principles relating to the national economy and patrimony, should be read and
understood in relation to the other sections in said article, especially Secs. 1 and 13
thereof which read:

Section 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and

efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. x x x
xxxxxxxxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national
economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation
for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially
the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos in the grant of
rights, privileges and concessions covering the national economy and patrimony and
in the use of Filipino labor, domestic materials and locally-produced goods; (2) by
mandating the State to adopt measures that help make them competitive; and (3) by
requiring the State to develop a self-reliant and independent national economy
effectively controlled by Filipinos. In similar language, the Constitution takes into
account the realities of the outside world as it requires the pursuit of a trade policy that
serves the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity; and speaks of industries which are competitive in
both domestic and foreign markets as well as of the protection of Filipino enterprises
against unfair foreign competition and trade practices.
[27]

[28]

[29]

[30]

It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al., this Court held that Sec. 10, second par., Art. XII of the 1987
Constitution is a mandatory, positive command which is complete in itself and which
needs no further guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable. However, as the constitutional provision itself states, it is
enforceable only in regard to the grants of rights, privileges and concessions covering
national economy and patrimony and not to every aspect of trade and commerce. It
refers to exceptions rather than the rule. The issue here is not whether this paragraph of
Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there
[31]

are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition and trade practices
that are unfair. In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of
the Philippine economy. While the Constitution does not encourage the unlimited entry
of foreign goods, services and investments into the country, it does not prohibit them
either.In fact, it allows an exchange on the basis of equality and reciprocity, frowning
only on foreign competition that is unfair.
[32]

WTO Recognizes Need to Protect Weak Economies


Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats and
veto powers in the Security Council, in the WTO, decisions are made on the basis of
sovereign equality, with each members vote equal in weight to that of any other. There
is no WTO equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial


Conference and the General Council shall be taken by the majority of the votes cast,
except in cases of interpretation of the Agreement or waiver of the obligation of a
member which would require three fourths vote. Amendments would require two
thirds vote in general. Amendments to MFN provisions and the Amendments
provision will require assent of all members. Any member may withdraw from the
Agreement upon the expiration of six months from the date of notice of withdrawals.

[33]

Hence, poor countries can protect their common interests more effectively through
the WTO than through one-on-one negotiations with developed countries. Within the
WTO, developing countries can form powerful blocs to push their economic agenda
more decisively than outside the Organization. This is not merely a matter of practical
alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying
the WTO Agreement recognize the need of developing countries like the Philippines to
share in the growth in international trade commensurate with the needs of their
economic development. These basic principles are found in the preamble of the WTO
Agreement as follows:
[34]

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should
be conducted with a view to raising standards of living, ensuring full employment and
a large and steadily growing volume of real income and effective demand, and
expanding the production of and trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their respective needs and concerns at
different levels of economic development,
Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure a share
in the growth in international trade commensurate with the needs of their economic
development,
Being desirous of contributing to these objectives by entering into reciprocal and
mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of discriminatory treatment in
international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral
trading system encompassing the General Agreement on Tariffs and Trade, the results
of past trade liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the
foregoing basic principles, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and the period
within which the reduction is to be spread out. Specifically, GATT requires an average
tariff reduction rate of 36% for developed countries to be effected within a period of six
(6) years while developing countries -- including the Philippines -- are required to effect
an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce
domestic support to agricultural products by 20% over six (6) years, as compared
to only 13% for developing countries to be effected within ten (10) years.

In regard to export subsidy for agricultural products, GATT requires developed


countries to reduce their budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a period of six (6) years. For
developing countries, however, the reduction rate is only two-thirds of that prescribed for
developed countries and a longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures, countervailing
measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be deprived of
control of the economy. Quite the contrary, the weaker situations of developing nations
like the Philippines have been taken into account; thus, there would be no basis to say
that in joining the WTO, the respondents have gravely abused their discretion. True,
they have made a bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside on the ground of grave
abuse of discretion, simply because we disagree with it or simply because we believe
only in other economic policies. As earlier stated, the Court in taking jurisdiction of this
case will not pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant and independent national
economy does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion nor mendicancy in the
international community. As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
[35]

Economic self-reliance is a primary objective of a developing country that is keenly


aware of overdependence on external assistance for even its most basic needs. It does
not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue foreign
control of the national economy, especially in such strategic industries as in the
development of natural resources and public utilities.
[36]

The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on equality and reciprocity, the fundamental law encourages industries
that are competitive in both domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the
[37]

gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and
tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business
or enterprise, nor does it contain any specific pronouncement that Filipino companies
should
be
pampered
with
a
total
proscription of foreign competition. On the other hand, respondents claim
that
WTO/GATT aims to make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most reasonable prices. Consequently,
the question boils down to whether WTO/GATT will favor the general welfare of the
public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to
reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare because it will -as promised by its promoters -- expand the countrys exports and generate more
employment?
Will it bring more prosperity, employment, purchasing power and quality products at
the most reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers, for
which they are answerable to our people during appropriate electoral exercises. Such
questions and the answers thereto are not subject to judicial pronouncements based on
grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was
drafted and ratified in 1987. That does not mean however that the Charter is necessarily
flawed in the sense that its framers might not have anticipated the advent of a
borderless world of business. By the same token, the United Nations was not yet in
existence when the 1935 Constitution became effective. Did that necessarily mean that
the then Constitution might not have contemplated a diminution of the absoluteness of
sovereignty when the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the decisions of various UN
organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only
the vagaries of contemporary events. They should be interpreted to cover even future

and unknown circumstances. It is to the credit of its drafters that a Constitution can
withstand the assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As one eminent political
law writer and respected jurist explains:
[38]

The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and framework only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly in the crucible of Filipino minds and hearts, where it will in time
develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history the dynamism
and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall ensure the conformity of its
laws, regulations and administrative procedures with its obligations as provided in the
annexed Agreements. Petitioners maintain that this undertaking unduly limits, restricts
and impairs Philippine sovereignty, specifically the legislative power which under Sec. 2,
Article VI of the 1987 Philippine Constitution is vested in the Congress of the
Philippines. It is an assault on the sovereign powers of the Philippines because this
means that Congress could not pass legislation that will be good for our national interest
and general welfare if such legislation will not conform with the WTO Agreement, which
not only relates to the trade in goods x x x but also to the flow of investments and
money x x x as well as to a whole slew of agreements on socio-cultural matters x x x.
[39]

[40]

More specifically, petitioners claim that said WTO proviso derogates from the power
to tax, which is lodged in the Congress. And while the Constitution allows Congress to
authorize the President to fix tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts, such authority is subject to specified limits
and x x x such limitations and restrictions as Congress may provide, as in fact it did
under Sec. 401 of the Tariff and Customs Code.
[41]

[42]

Sovereignty Limited by International Law and Treaties


This Court notes and appreciates the ferocity and passion by which petitioners
stressed their arguments on this issue. However, while sovereignty has traditionally
been deemed absolute and all-encompassing on the domestic level, it is however

subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly


or impliedly, as a member of the family of nations. Unquestionably, the Constitution did
not envision a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity, with all nations." By
the doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws. One
of the oldest and most fundamental rules in international law is pacta sunt servanda -international agreements must be performed in good faith. A treaty engagement is not a
mere moral obligation but creates a legally binding obligation on the parties x x x. A
state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the
obligations undertaken.
[43]

[44]

[45]

By their inherent nature, treaties really limit or restrict the absoluteness of


sovereignty. By their voluntary act, nations may surrender some aspects of their state
power in exchange for greater benefits granted by or derived from a convention or
pact. After all, states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit the exercise of
their otherwise absolute rights. Thus, treaties have been used to record agreements
between States concerning such widely diverse matters as, for example, the lease of
naval bases, the sale or cession of territory, the termination of war, the regulation of
conduct of hostilities, the formation of alliances, the regulation of commercial relations,
the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations. The sovereignty of a state therefore
cannot in fact and in reality be considered absolute. Certain restrictions enter into the
picture: (1) limitations imposed by the very nature of membership in the family of nations
and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy,
Today, no nation can build its destiny alone. The age of self-sufficient nationalism is
over. The age of interdependence is here.
[46]

[47]

UN Charter and Other Treaties Limit Sovereignty


Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to restrict its sovereign rights under the concept of sovereignty
as auto-limitation.47-A Under Article 2 of the UN Charter, (a)ll members shall give the
United Nations every assistance in any action it takes in accordance with the present
Charter, and shall refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action. Such assistance includes payment
of its corresponding share not merely in administrative expenses but also in
expenditures for the peace-keeping operations of the organization. In its advisory
opinion of July 20, 1961, the International Court of Justice held that money used by the
United Nations Emergency Force in the Middle East and in the Congo were expenses of
the United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its

members must bear their corresponding share in such expenses. In this sense, the
Philippine Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping expenses or not. So too,
under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic
privileges and immunities, thereby limiting again the exercise of sovereignty of members
within their own territory.Another example: although sovereign equality and domestic
jurisdiction of all members are set forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement measures decided by the Security
Council for the maintenance of international peace and security under Chapter VII of the
Charter. A final example: under Article 103, (i)n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the present
charter shall prevail, thus unquestionably denying the Philippines -- as a member -- the
sovereign power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international
pacts -- both bilateral and multilateral -- that involve limitations on Philippine
sovereignty.These are enumerated by the Solicitor General in his Compliance dated
October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where
the Philippines agreed, among others, to exempt from tax, income received in
the Philippines by, among others, the Federal Reserve Bank of the United
States, the Export/Import Bank of the United States, the Overseas Private
Investment Corporation of the United States. Likewise, in said convention,
wages, salaries and similar remunerations paid by the United States to its
citizens for labor and personal services performed by them as employees or
officials of the United States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance
of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.
(d) Bilateral convention with the French Republic for the avoidance of double
taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes
aircrafts of South Korea and the regular equipment, spare parts and supplies
arriving with said aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar
duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and
Korean air carriers under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where
the Philippines exempted Israeli nationals from the requirement of obtaining
transit or visitor visas for a sojourn in the Philippines not exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding 59
days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents
can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties, taxes and
related charges.
(k) Multilateral Convention on the Law of Treaties. In this convention, the
Philippines agreed to be governed by the Vienna Convention on the Law of
Treaties.
(l) Declaration of the President of the Philippines accepting compulsory
jurisdiction of the International Court of Justice. The International Court of
Justice has jurisdiction in all legal disputes concerning the interpretation of a
treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise
of its sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and immunities to the Philippines,
its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights, the


environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international

relations is preferred as an alternative, in most cases we accept that the benefits of the
reciprocal obligations involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to durable, welldefined substantive norms and objective dispute resolution procedures reduce the risks
of larger countries exploiting raw economic power to bully smaller countries, by
subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide access to a larger set of potential
new trading relationship than in case of the larger country gaining enhanced success to
the smaller countrys market.
[48]

The point is that, as shown by the foregoing treaties, a portion of sovereignty may
be waived without violating the Constitution, based on the rationale that the Philippines
adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of x x x cooperation and amity with all nations.
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) intrudes on the power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures.
[49]

[50]

To understand the scope and meaning of Article 34, TRIPS, it will be fruitful to
restate its full text as follows:
[51]

Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights
of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a
patent is a process for obtaining a product, the judicial authorities shall have the
authority to order the defendant to prove that the process to obtain an identical
product is different from the patented process.Therefore, Members shall provide,
in at least one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence of proof to
the contrary, be deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by
the process and the owner of the patent has been unable through
reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph
(b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants
in protecting their manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (note
the words in the absence of proof to the contrary) presumption that a product shown to
be identical to one produced with the use of a patented process shall be deemed to
have been obtained by the (illegal) use of the said patented process, (1) where such
product obtained by the patented product is new, or (2) where there is substantial
likelihood that the identical product was made with the use of the said patented process
but the owner of the patent could not determine the exact process used in obtaining
such identical product. Hence, the burden of proof contemplated by Article 34 should
actually be understood as the duty of the alleged patent infringer to overthrow such
presumption. Such burden, properly understood, actually refers to the burden of
evidence (burden of going forward) placed on the producer of the identical (or fake)
product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof since,
regardless of the presumption provided under paragraph 1 of Article 34, such owner still
has to introduce evidence of the existence of the alleged identical product, the fact that
it is identical to the genuine one produced by the patented process and the fact of
newness of the genuine product or the fact of substantial likelihood that the identical
product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as
the present law on the subject, Republic Act No. 165, as amended, otherwise known as
the Patent Law, provides a similar presumption in cases of infringement of patented
design or utility model, thus:

SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility


model shall consist in unauthorized copying of the patented design or utility model for
the purpose of trade or industry in the article or product and in the making, using or
selling of the article or product copying the patented design or utility model. Identity
or substantial identity with the patented design or utility model shall constitute
evidence of copying. (underscoring supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a


disputable presumption applies only if (1) the product obtained by the patented process
is NEW or (2) there is a substantial likelihood that the identical product was made by the
process and the process owner has not been able through reasonable effort to
determine the process used. Where either of these two provisos does not obtain,
members shall be free to determine the appropriate method of implementing the
provisions of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third
issue -- derogation of legislative power - will apply to this fourth issue also. Suffice it to
say that the reciprocity clause more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is
with due process and the concept of adversarial dispute settlement inherent in our
judicial system.
So too, since the Philippine is a signatory to most international conventions on
patents, trademarks and copyrights, the adjustment in legislation and rules of procedure
will not be substantial.
[52]

Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other
Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its
annexes -- but not in the other documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the Understanding on Commitments in
Financial Services -- is defective and insufficient and thus constitutes abuse of
discretion. They submit that such concurrence in the WTO Agreement alone is flawed
because it is in effect a rejection of the Final Act, which in turn was the document signed
by Secretary Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to the Senate which
enumerated what constitutes the Final Act should have been the subject of concurrence
of the Senate.
[53]

A final act, sometimes called protocol de clture, is an instrument which records


the winding up of the proceedings of a diplomatic conference and usually includes a
reproduction of the texts of treaties, conventions, recommendations and other acts
agreed upon and signed by the plenipotentiaries attending the conference. It is not the
treaty itself. It is rather a summary of the proceedings of a protracted conference which
may have taken place over several years. The text of the Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations is contained in just one
page in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By
signing said Final Act, Secretary Navarro as representative of the Republic of the
Philippines undertook:
[54]

[55]

"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the
Final Act required from its signatories, namely, concurrence of the Senate in the WTO
Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the members can meet to give effect to those
provisions of this Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this Agreement.
[56]

The Understanding on Commitments in Financial Services also approved in


Marrakesh does not apply to the Philippines. It applies only to those 27 Members which
have indicated in their respective schedules of commitments on standstill, elimination of
monopoly, expansion of operation of existing financial service suppliers, temporary entry
of personnel, free transfer and processing of information, and national treatment with
respect to access to payment, clearing systems and refinancing available in the normal
course of business.
[57]

On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts, as follows:
[58]

Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct of
trade relations among its Members in matters to the agreements and associated
legal instruments included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and
3 (hereinafter referred to as Multilateral Agreements) are integral parts of this
Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4
(hereinafter referred to as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create either obligation or
rights for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A


(hereinafter referred to as GATT 1994) is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently
rectified, amended or modified (hereinafter referred to as GATT 1947).
It should be added that the Senate was well-aware of what it was concurring in as
shown by the members deliberation on August 25, 1994. After reading the letter of
President Ramos dated August 11, 1994, the senators of the Republic minutely
dissected what the Senate was concurring in, as follows:
[59]

[60]

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made by
Senator Taada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of order which,
however, he agreed to withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That suggestion was to treat the
proceedings of the Committee as being in the nature of briefings for Senators until the
question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new... is he making
a new submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator Tolentino since
they were the ones that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself. The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now
being submitted. The Final Act itself specifies what is going to be submitted to with
the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with their
procedures.
In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional procedures
may provide but it is the World Trade Organization Agreement. And if that is the one
that is being submitted now, I think it satisfies both the Constitution and the Final Act
itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterdays session
and I dont see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement,
petitioners are invoking this Courts constitutionally imposed duty to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence therein via Senate
Resolution No. 97.Procedurally, a writ of certiorari grounded on grave abuse of
discretion may be issued by the Court under Rule 65 of the Rules of Court when it is
amply shown that petitioners have no other plain, speedy and adequate remedy in the
ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough.It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law. Failure on the part
of the petitioner to show grave abuse of discretion will result in the dismissal of the
petition.
[61]

[62]

[63]

In rendering this Decision, this Court never forgets that the Senate, whose act is
under review, is one of two sovereign houses of Congress and is thus entitled to great
respect in its actions. It is itself a constitutional body independent and coordinate, and
thus its actions are presumed regular and done in good faith. Unless convincing proof
and persuasive arguments are presented to overthrow such presumptions, this Court
will resolve every doubt in its favor. Using the foregoing well-accepted definition of grave
abuse of discretion and the presumption of regularity in the Senates processes, this
Court cannot find any cogent reason to impute grave abuse of discretion to the Senates
exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of
Article VII of the Constitution.
[64]

It is true, as alleged by petitioners, that broad constitutional principles require the


State to develop an independent national economy effectively controlled by Filipinos;
and to protect and/or prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles -- while serving as judicial and
legislative guides -- are not in themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles relied upon by the Senate which
mandate the pursuit of a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity and the
promotion of industries which are competitive in both domestic and foreign markets,
thereby justifying its acceptance of said treaty. So too, the alleged impairment of
sovereignty in the exercise of legislative and judicial powers is balanced by the adoption

of the generally accepted principles of international law as part of the law of the land
and the adherence of the Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave
its consent to the WTO Agreement thereby making it a part of the law of the land is a
legitimate exercise of its sovereign duty and power. We find no patent and gross
arbitrariness or despotism by reason of passion or personal hostility in such exercise. It
is not impossible to surmise that this Court, or at least some of its members, may even
agree with petitioners that it is more advantageous to the national interest to strike down
Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of
discretion to the Senate and to nullify its decision. To do so would constitute grave
abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate
did was a valid exercise of its authority. As to whether such exercise was wise,
beneficial or viable is outside the realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to whether the nation should join
the worldwide march toward trade liberalization and economic globalization is a matter
that our people should determine in electing their policy makers. After all, the WTO
Agreement allows withdrawal of membership, should this be the political desire of a
member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an
Asian Renaissance where the East will become the dominant region of the world
economically, politically and culturally in the next century. He refers to the free market
espoused by WTO as the catalyst in this coming Asian ascendancy. There are at
present about 31 countries including China, Russia and Saudi Arabia negotiating for
membership in the WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure for multilateral
trading and the veritable forum for the development of international trade law. The
alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly
enriched with original membership, keenly aware of the advantages and disadvantages
of globalization with its on-line experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international strategy for economic
prosperity and stability in the new millennium. Let the people, through their duly
authorized elected officers, make their free choice.
[65]

WHEREFORE, the petition is DISMISSED for lack of merit.


SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
Padilla, and Vitug, JJ., in the result.

In Annex A of her Memorandum, dated August 8, 1996, received by this Court on August 12, 1996,
Philippine Ambassador to the United Nations, World Trade Organization and other international
[1]

organizations Lilia R. Bautista (hereafter referred to as Bautista Paper) submitted a 46-year Chronology of
GATT as follows:
1947 The birth of GATT. On 30 October 1947, the General Agreement on Tariffs and
Trade (GATT) was signed by 23 nations at the Palais des Nations in
Geneva. The Agreement contained tariff concessions agreed to in the first
multilateral trade negotiations and a set of rules designed to prevent these
concessions from being frustrated by restrictive trade measures.
The 23 founding contracting parties were members of the Preparatory Committee
established by the United Nations Economic and Social Council in 1946 to draft
the charter of the International Trade Organization (ITO). The ITO was envisaged
as the final leg of a triad of post-War economic agencies (the other two were the
International Monetary Fund and the International Bank for Reconstruction - later
the World Bank).
In parallel with this task, the Committee members decided to negotiate tariff concessions
among themselves. From April to October 1947, the participants completed some
123 negotiations and established 20 schedules containing the tariff reductions
and bindings which became an integral part of GATT. These schedules resulting
from the first Round covered some 45,000 tariff concessions and about $10
billion in trade.
GATT was conceived as an interim measure that put into effect the commercial-policy
provisions of the ITO. In November, delegations from 56 countries met in
Havana, Cuba, to consider the ITO draft as a whole. After long and difficult
negotiations, some 53 countries signed the Final Act authenticating the text of the
Havana Charter in March 1948. There was no commitment, however, from
governments to ratification and, in the end, the ITO was stillborn, leaving GATT
as the only international instrument governing the conduct of world trade.
1948 Entry into force. On 1 January 1948, GATT entered into force. The 23 founding
members were: Australia, Belgium, Brazil, Burma, Canada, Ceylon, Chile, China,
Cuba, Czechoslovakia, France, India, Lebanon, Luxemburg, Netherlands, New
Zealand, Norway, Pakistan, Southern Rhodesia, Syria, South Africa, United
Kingdom and United States. The first Session of the contracting parties was held
from February to March in Havana, Cuba. The secretariat of the Interim
Commission for the ITO, which served as the ad hoc secretariat of GATT, move
from lake Placid, New York, to Geneva. The Contracting Parties held their
second session in Geneva from August to September.
1949 Second Round at Annecy. During the second Round of trade negotiations, held
from April to August at Annecy, France, the contracting parties exchange some
5,000 tariff concession. At their third Session, they also dealt with the accession
of ten more countries.
1950 Third Round At Torquay. From September 1950 to April 1951, the contracting
parties exchange some 8,700 tariff concessions in the English town, yielding tariff
reduction of about 25 per cent in relation to the 1948 level. Four more countries
acceded to GATT. During the fifth Session of the Contracting Parties, the United
States indicated that the ITO Charter would not be re-submitted to the US
congress; this, in effect, meant that ITO would not come into operation.
1956 Fourth Round at Geneva. The fourth Round was completed in May and produce
some $2.5 billion worth of tariff reductions. At the beginning of the year, the GATT
commercial policy course for officials of developing countries was inaugurated.
1958 The Haberler Report. GATT published Trends in International Trade in
October. Known as the "Haberler Report" in honour of Professor Gottfried

Haberler, the chairman of the panel of imminent economist, it provided initial


guidelines for the work of GATT. The Contracting Parties at their 13th Sessions,
attended by Ministers, subsequently established 3 committees in
GATT: Committee I to convene a further tariff negotiating conference; Committee
II To review the agricultural policies of member governments and Committee III to
tackle the problems facing developing countries in their trade. The establishment
of the European Economic Community during the previous year also demanded
large scale tariff negotiation under Article XXIV 6 of the General Agreement.
1960 The Dillon Round. The fifth Round opened in September and was divided into two
phases: the first was concerned with EEC members states for the creation of a
single schedule of concessions for the Community based on its Common
External Tariff; and the second was a further general round of tariff
negotiations. Named in honor of US Under-Secretary of State Douglas Dillon
who proposed the negotiations, the Round was concluded in July 1962 and
resulted in about 4,400 tariff concessions covering $4.9 billion of trade.
1961 The Short-Term Arrangement covering cotton textiles was agreed as an exception
to the GATT rules. The arrangement permitted the negotiation of quota
restrictions affecting the exports of cotton-producing countries. In 1962 the "Short
Term " Arrangement become the "Long term" Arrangement, lasting until 1974
when the Multifibre Arrangement entered into force.
1964 The Kennedy Round. Meeting at Ministerial Level, a Trade Negotiations
Committee formally opened the Kennedy Round in May. In June 1967, the
Round's Final Act was signed by some 50 participating countries which together
accounted for 75 per cent of world trade. For the first time, negotiation departed
from product-by-product approach used in the previous Rounds to an across-theboard or linear method of cutting tariffs for industrial goods. The working
hypothesis of a 50 per cent target cut in tariff levels was achieved in many
areas. Concessions covered an estimated total value of trade of about $40
billion. Separate agreements were reached on grains, chemical products and a
Code on Anti-Dumping.
1965 A New Chapter. The early 1960s marked the accession to the General Agreement
of many newly-independent developing countries. In February, the Contracting
Parties, meeting in a special session, adopted the text of Part IV on Trade and
Development. The additional chapter to the GATT required developed countries
to accord high priority to the reduction of trade barriers to products of developing
countries. A committee on Trade and Development was established to oversee
the functioning of the new GATT provisions. In the preceding year, GATT had
established the International Trade Center (ITC) to help developing countries in
trade promotion and identification of potential markets. Since 1968, the ITC had
been jointly operated by GATT and the UN Conference on Trade and
Development (UNCTAD).
1973 The Tokyo Round. The seventh Round was launched by Ministers in September at
the Japanese capital. Some 99 countries participated in negotiating a
comprehensive body of agreements covering both tariff and non-tariff matters. At
the end of the Round in November 1979, participants exchange tariff reduction
and bindings which covered more than $300 billion of trade. As a result of these
cuts, the weighted average tariff on manufactured goods in the world's nine major
Industrial Markets declined from 7.0 to 4.7 per cent. Agreements were reached in
the following areas; subsidies and countervailing measures, technical barriers to
trade, import licensing procedures, government procurement, customs valuation,
a revised anti-dumping code, trade in bovine meat, trade in daily products and
trade in civil aircraft. The first concrete result of the Round was the reduction of

import duties and other trade barriers by industrial countries on tropical products
exported by developing countries.
1974 On 1 January 1974, the Arrangement Regarding International Trade in textiles,
otherwise known as the Multifibre Arrangement (MFA), entered into force. Its
superseded the arrangement that had been governing trade in cotton textiles
since 1961. The MFA seeks to promote the expansion and progressive
liberalization of trade in textile product while at the same time avoiding disruptive
effects in individual markets in lines of production. The MFA was extended in
1978, 1982, 1986, 1991 and 1992. MFA members account for most of the world
exports of textiles and clothing which in 1986 amounted to US$128 billion.
1982 Ministerial Meeting. Meeting for the first time in nearly ten years, the GATT
Ministers in November at Geneva reaffirmed the validity of GATT rules for the
conduct of international trade and committed themselves to combating
protectionist pressures. They also established a wide-ranging work programme
for the GATT which was to laid down the ground work for a new Round.
1986 The Uruguay Round. The GATT Trade Ministers meeting at Punta del
Este, Uruguay, launched the eighth Round of Trade Negotiations on 20
September. The Punta del Este, declarations, while representing a single political
undertaking, was divided into two section. The First covered negotiations on
Trade in goods and the second initiated negotiation on trade in services. In the
area of trade in goods, the Ministers committed themselves to a "standstill" on
new trade measures inconsistent with their GATT obligations and to a "rollback"
programme aimed at phasing out existing inconsistent measures. Envisaged to
last four years, negotiations started in early February 1987 in the following areas:
tariffs, non-tariff measures, tropical products, natural resource-based products,
textiles and clothing, agriculture, subsidies, safeguards, trade-related aspects of
intellectual property rights including trade in counterfeit goods, in trade- related
investment measures. The work of other groups included a review of GATT
articles, the GATT dispute-settlement procedure, the Tokyo Round agreements,
as well as functioning of the GATT system as a whole.
1994 "GATT 1994" is the updated version of GATT 1947 and takes into account the substantive
and institutional changes negotiated in the Uruguay Round. GATT 1994 is an integral part
of the World Trade Organization established on 1 January 1995. It is agreed that there be
a one year transition period during which certain GATT 1947 bodies and commitments
would co-exist with those of the World Trade Organization."
[2]

The Final Act was signed by representatives of 125 entities, namely Algeria, Angola, Antigua and
Barbuda, Argentine Republic, Australia, Republic of Austria, State of Bahrain, Peoples Republic of
Bangladesh, Barbados, The Kingdom of Belgium, Belize, Republic of Benin, Bolivia, Botswana,
Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic,
Chad, Chile, Peoples Republic of China, Colombia, Congo, Costa Rica, Republic of Cote dIvoire,
Cuba, Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth of Dominica, Dominican
Republic, Arab Republic of Egypt, El Salvador, European Communities, Republic of Fiji, Finland,
French Republic, Gabonese Republic, Gambia, Federal Republic of Germany, Ghana, Hellenic
Republic, Grenada, Guatemala, Republic of Guinea-Bissau, Republic of Guyana, Haiti,
Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, State of Israel, Italian
Republic, Jamaica, Japan, Kenya, Korea, State of Kuwait, Kingdom of Lesotho, Principality of
Liechtenstein, Grand Duchy of Luxembourg, Macau, Republic of Madagascar, Republic of
Malawi, Malaysia, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic Republic of
Mauritania, Republic of Mauritius, United Mexican States, Kingdom of Morocco, Republic of
Mozambique, Union of Myanmar, Republic of Namibia, Kingdom of the Netherlands, New
Zealand, Nicaragua, Republic of Niger, Federal Republic of Nigeria, Kingdom of Norway, Islamic
Republic of Pakistan, Paraguay, Peru, Philippines, Poland, Portuguese Republic, State of Qatar,
Romania, Rwandese Republic, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the

Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, South Africa, Kingdom of Spain,
Democratic Socialist Republic of Sri Lanka, Republic of Surinam, Kingdom of Swaziland,
Kingdom of Sweden, Swiss Confederation, United Republic of Tanzania, Kingdom of Thailand,
Togolese Republic, Republic of Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab
Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America,
Eastern Republic of Uruguay, Venezuela, Republic of Zaire, Republic of Zambia, Republic of
Zimbabwe; see pp. 6-25, Vol. 1, Uruguay Round of Multilateral Trade Negotiations.
[3]

11 August 1994

The Honorable Members


Senate
Through Senate President Edgardo Angara
Manila
Ladies and Gentlemen:
I have the honor to forward herewith an authenticated copy of the Uruguay Round Final Act signed by
Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines on 15 April
1994 in Marrakesh, Morocco.
The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen the
interrelationship between trade and economic policies affecting growth and development.
The Final Act will improve Philippine access to foreign markets, especially its major trading partners
through the reduction of tariffs on its exports particularly agricultural and industrial
products. These concessions may be availed of by the Philippines, only if it is a member of the
World Trade Organization. By GATT estimates, the Philippines can acquire additional export
revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of the
normal increase in exports that the Philippines may experience.
The Final Act will also open up new opportunities for the services sector in such areas as the movement
of personnel, (e.g. professional services and construction services), cross-border supply (e.g.
computer-related services), consumption abroad (e.g. tourism, convention services, etc.) and
commercial presence.
The clarified and improved rules and disciplines on anti-dumping and countervailing measures will also
benefit Philippine exporters by reducing the costs and uncertainty associated with exporting while
at the same time providing a means for domestic industries to safeguard themselves against
unfair imports.
Likewise, the provision of adequate protection for intellectual property rights is expected to attract more
investments into the country and to make it less vulnerable to unilateral actions by its trading
partners (e.g. Sec. 301 of the United States Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final Act is hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is enclosed.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[4]

11 August 1994

The Honorable Members


Senate

Through Senate President Edgardo Angara


Manila
Ladies and Gentlemen:
I have the honor to forward herewith an authenticated copy of the Uruguay Round Final
Act signed by Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines
on 13 April 1994 in Marrakech (sic), Morocco.
Members of the trade negotiations committee, which included the Philippines, agreed that
the Agreement Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services embody the results of
their negotiations and form an integral part of the Uruguay Round Final Act.
By signing the Uruguay Round Final Act, the Philippines, through Secretary Navarro,
agreed:
(a) To submit the Agreement Establishing the World Trade Organization to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution; and
(b) To adopt the Ministerial Declarations and Decisions.
The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen the
interrelationship between trade and economic policies affecting growth and development.
The Final Act will improve Philippine access to foreign markets, especially its major
trading partners through the reduction of tariffs on its exports particularly agricultural and
industrial products.These concessions may be availed of by the Philippines, only if it is a member
of the World Trade Organization. By GATT estimates, the Philippines can acquire additional
export revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of
the normal increase in the exports that the Philippines may experience.
The Final Act will also open up new opportunities for the services sector in such areas as
the movement of personnel, (e.g., professional services and construction services), cross-border
supply (e.g., computer-related services), consumption abroad (e.g., tourism, convention services,
etc.) and commercial presence.
The clarified and improved rules and disciplines on anti-dumping and countervailing
measures will also benefit Philippine exporters by reducing the costs and uncertainty associated
with exporting while at the same time providing a means for domestic industries to safeguard
themselves against unfair imports.
Likewise, the provision of adequate protection for intellectual property rights is expected
to attract more investments into the country and to make it a less vulnerable to unilateral actions
by its trading partners (e.g., Sec. 301 of the United States Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final Act, the Agreement Establishing the
World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services, as embodied in the Uruguay Round Final Act and forming
and integral part thereof are hereby submitted to the Senate for its concurrence pursuant to
Section 21, Article VII of the Constitution.
A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is
enclosed.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[5]

December 9, 1994

HON. EDGARDO J. ANGARA

Senate President
Senate, Manila
Dear Senate President Angara:
Pursuant to the provisions of Sec. 26 (2) Article VI of the Constitution, I hereby certify to
the necessity of the immediate adoption of P.S. 1083, entitled:
CONCURRING IN THE RATIFICATION OF THE AGREEMENT ESTABLISHING THE WORLD TRADE
ORGANIZATION
to meet a public emergency consisting of the need for immediate membership in the WTO in
order to assure the benefits to the Philippine economy arising from such membership.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[6]

Attached as Annex A, Petition; rollo, p. 52. P.S. 1083 is the forerunner of assailed Senate Resolution
No. 97. It was prepared by the Committee of the Whole on the General Agreement on Tariffs and
Trade chaired by Sen. Blas F. Ople and co-chaired by Sen. Gloria Macapagal-Arroyo; see Annex
C, Compliance of petitioners dated January 28, 1997.

[7]

The Philippines is thus considered an original or founding member of WTO, which as of July 26, 1996
had 123 members as follows: Antigua and Barbuda, Argentina, Australia, Austria, Bahrain,
Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Botswana, Brazil, Brunei Darussalam,
Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chili, Colombia, Costa
Rica, Cote dIvoire, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican
Republic, Ecuador, Egypt, El Salvador, European Community, Fiji, Finland, France, Gabon,
Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau, Guyana, Haiti,
Honduras, Hongkong, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan,
Kenya, Korea, Kuwait, Lesotho, Liechtenstein, Luxembourg, Macau, Madagascar, Malawi,
Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Mozambique, Myanmar,
Namibia, Netherlands -- for the Kingdom in Europe and for the Netherlands Antilles, New
Zealand, Nicaragua, Nigeria, Norway, Pakistan, Papua New Guinea, Paraguay, Peru, Philippines,
Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent &
the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands,
South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland, Tanzania, Thailand,
Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Emirates, United Kingdom,
United States, Uruguay, Venezuela, Zambia, and Zimbabwe. See Annex A, Bautista Paper, infra.

[8]

Page 6; rollo, p. 261.

[9]

In compliance, Ambassador Bautista submitted to the Court on August 12, 1996, a Memorandum (the
Bautista Paper) consisting of 56 pages excluding annexes. This is the same document mentioned
in footnote no. 1.

[10]

Memorandum for Respondents, p. 13; rollo, p. 268.

[11]

Cf. Kilosbayan, Incorporated vs. Morato, 246 SCRA 540, July 17, 1995 for a discussion on locus
standi. See also the Concurring Opinion of Mr. Justice Vicente V. Mendoza in Tatad vs. Garcia,
Jr., 243 SCRA 473, April 6, 1995, as well as Kilusang Mayo Uno Labor Center vs. Garcia, Jr., 239
SCRA 386, 414, December 23, 1994.

[12]

Aquino, Jr. vs. Ponce Enrile, 59 SCRA 183, 196, September 17, 1974, cited in Bondoc vs. Pineda, 201
SCRA 792, 795, September 26, 1991.

[13]

Guingona, Jr. vs. Gonzales, 219 SCRA 326, 337, March 1, 1993.

[14]

See Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051 for a discussion on the scope of political
question.

[15]

Section 1, Article VIII, (par. 2).

[16]

In a privilege speech on May 17, 1993, entitled Supreme Court -- Potential Tyrant? Senator Arturo
Tolentino concedes that this new provision gives the Supreme Court a duty to intrude into the
jurisdiction of the Congress or the President.

[17]

I Record of the Constitutional Commission 436.

[18]

Cf. Daza vs. Singson, 180 SCRA 496, December 21, 1989.

[19]

Memorandum for Petitioners, pp. 14-16; rollo, pp. 204-206.

[20]

Par. 4, Article XVI, WTO Agreement, Uruguay Round of Multilateral Trade Negotiations, Vol. 1, p. 146.

[21]

Also entitled Declaration of Principles. The nomenclature in the 1973 Charter is identical with that in the
1987s.

[22]

Philippine Political Law, 1962 Ed., p. 116.

[23]

Bernas, The Constitution of the Philippines: A Commentary, Vol. II, 1988 Ed., p. 2. In the very recent
case of Manila Prince Hotel vs. GSIS, G.R. No. 122156, February 3, 1997, p. 8, it was held that A
provision which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing.

[24]

246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of Finance, G.R. No. 115455 and
consolidated cases, August 25, 1995.

[25]

197 SCRA 52, 68, May 14, 1991.

[26]

224 SCRA 792, 817, July 30, 1993.

[27]

Sec. 10, Article XII.

[28]

Sec. 12, Article XII.

[29]

Sec. 19, Art. II.

[30]

Sec. 13, Art. XII.

[31]

G.R. No. 122156, February 3, 1997, pp. 13-14.

[32]

Sec. 1, Art. XII.

[33]

Bautista Paper, p. 19.

[34]

Preamble, WTO Agreement p. 137,


Negotiations. Underscoring supplied.

[35]

Sec. - 19, Article II, Constitution.

[36]

III Records of the Constitutional Commission 252.

[37]

Sec. 13, Article XII, Constitution.

[38]

Justice Isagani A. Cruz, Philippine Political Law, 1995 Ed., p. 13, quoting his own article entitled, A
Quintessential Constitution earlier published in the San Beda Law Journal, April 1972;
underscoring supplied.

[39]

Par. 4, Article XVI (Miscellaneous Provisions), WTO Agreement, p.146, Vol. 1, Uruguay Round of
Multilateral Trade Negotiations.

[40]

Memorandum for the Petitioners, p. 29; rollo, p. 219.

[41]

Sec. 24, Article VI, Constitution.

[42]

Subsection (2), Sec. 28, Article, VI Constitution.

Vol.

1, Uruguay

Round

of

Multilateral

Trade

[43]

Sec. 2, Article II, Constitution.

[44]

Cruz, Philippine Political Law, 1995 Ed., p. 55.

[45]

Salonga and Yap, op cit 305.

[46]

Salonga, op. cit., p. 287.

[47]

Quoted in Paras and Paras, Jr., International Law and World Politics, 1994 Ed., p. 178.

47-A

Reagan vs. Commission of Internal Revenue, 30 SCRA 968, 973, December 27, 1969.

[48]

Trebilcock and Howse. The Regulation of International Trade, p. 14, London, 1995, cited on p. 55-56,
Bautista Paper.

[49]

Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.

[50]

Item 5, Sec. 5, Article VIII, Constitution.

[51]

Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.

[52]

Bautista Paper, p. 13.

[53]

See footnote 3 of the text of this letter.

[54]

Salonga and Yap, op cit., pp. 289-290.

[55]

The full text, without the signatures, of the Final Act is as follows:

Final Act Embodying the Results of the


Uruguay Round of Multilateral Trade Negotiations
1. Having met in order to conclude the Uruguay Round of Multilateral Trade Negotiations, representatives
of the governments and of the European Communities, members of the Trade Negotiations
Committee,agree that the Agreement Establishing the World Trade Organization (referred to in
the Final Act as the WTO Agreement), the Ministerial Declarations and Decisions, and the
Understanding on Commitments in Financial Services, as annexed hereto, embody the results of
their negotiations and form an integral part of this Final Act.
2. By signing to the present Final Act, the representatives agree.
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities with a view to seeking approval of the Agreement in accordance with their procedures;
and
(b) to adopt the Ministerial Declarations and Decisions.
3. The representatives agree on the desirability of acceptance of the WTO Agreement by all participants
in the Uruguay Round of Multilateral Trade Negotiations (hereinafter referred to as participants)
with a view to its entry into force by 1 January 1995, or as early as possible thereafter. Not later
than late 1994, Ministers will meet, in accordance with the final paragraph of the Punta del Este
Ministerial Declarations, to decide on the international implementation of the results, including the
timing of their entry into force.
4. The representatives agree that the WTO Agreement shall be opened for acceptance as a whole, by
signature or otherwise, by all participants pursuant to Article XIV thereof. The acceptance and
entry into force of a Plurilateral Trade Agreement included in Annex 4 of the WTO Agreement
shall be governed by the provisions of that Plurilateral Trade Agreement.
5. Before accepting the WTO Agreement, participants which are not contracting parties to the General
Agreement on Tariffs and Trade must first have concluded negotiations for their accession to the
General Agreement and become contracting parties thereto. For participants which are not
contracting parties to the general Agreement as of the date of the Final Act, the Schedules are not
definitive and shall be subsequently completed for the purpose of their accession to the General
Agreement and acceptance of the WTO Agreement.
6. This Final Act and the Texts annexed hereto shall be deposited with the Director-General to the
CONTRACTING PARTIES to the General Agreement on Tariffs and Trade who shall promptly
furnish to each participant a certified copy thereof.

DONE at Marrakesh this fifteenth day of April One thousand nine hundred and ninety-four, in a single
copy, in the English, French and Spanish languages, each text being authentic."
[56]

Bautista Paper, p. 16.

[57]

Bautista Paper, p. 16.

[58]

Uruguay Round of Multilateral Trade Negotiations, Vol. I, pp. 137-138.

[59]

See footnote 3 for complete text.

[60]

Taken from pp. 63-85, Respondent Memorandum.

[61]

Zarate vs. Olegario, G.R. No. 90655, October 7, 1996.

[62]

San Sebastian College vs. Court of Appeals, 197 SCRA 138, 144, May 15, 1991; Commissioner of
Internal Revenue vs. Court of Tax Appeals, 195 SCRA 444, 458 March 20, 1991; Simon vs. Civil
Service Commission, 215 SCRA 410, November 5, 1992; Bustamante vs. Commissioner on
Audit, 216 SCRA 134, 136, November 27, 1992.

[63]

Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990.

[64]

Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.

[65]

Readers Digest, December 1996 issue, p. 28.

EN BANC

[G.R. No. 138570. October 10, 2000]

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT,


BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente),
BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.),
DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG
PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and
the
PUBLIC
INTEREST
LAW
CENTER, petitioners,
vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN
AFFAIRS
SECRETARY
DOMINGO
SIAZON,
DEFENSE
SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER
AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR
RODOLFO BIAZON, and SENATOR FRANCISCO TATAD,
respondents.

[G.R. No. 138572. October 10, 2000]

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA),


EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO,
AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B.
ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO,
as Secretary of National Defense, and HON. DOMINGO L.
SIAZON, JR., as Secretary of Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R.


OSMEA III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B.
ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO,
MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE
and RODOLFO G. BIAZON, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National


President, Jose Aguila Grapilon, petitioners, vs. JOSEPH
EJERCITO ESTRADA, in his capacity as President, Republic of
the Philippines, and HON. DOMINGO SIAZON, in his capacity as
Secretary of Foreign Affairs, respondents.

[G.R. No. 138698. October 10, 2000]

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZONAVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO,
FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG,
KILOSBAYAN,
MOVEMENT
OF
ATTORNEYS
FOR
BROTHERHOOD,
INTEGRITY AND
NATIONALISM,
INC.
(MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF

NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B.


FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G.
BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION
TO THE VISITING FORCES AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari
and prohibition are issues relating to, and borne by, an agreement forged in the turn of
the last century between the Republic of the Philippines and the United States of
America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of installations in the
Philippine territory by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United States entered into a
Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to
respond to any external armed attack on their territory, armed forces, public vessels,
and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991,
the Philippines and the United States negotiated for a possible extension of the military
bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed
RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have
extended the presence of US military bases in the Philippines. [2] With the expiration of
the RP-US Military Bases Agreement, the periodic military exercises conducted
between the two countries were held in abeyance. Notwithstanding, the defense and
security relationship between the Philippines and the United States of America
continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by
Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the
complementing strategic interests of the United States and the Philippines in the AsiaPacific region. Both sides discussed, among other things, the possible elements of the
Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led
to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations[3] that culminated in Manila on January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on
February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of


Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines, [5] the Instrument
of Ratification, the letter of the President[6] and the VFA, for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to
its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee
on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public hearings were held by the
two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443 recommending the concurrence of the Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its implementation. Debates then ensued.
[8]

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the
Senate, by a two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then
re-numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes
between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the
mechanism for regulating the circumstances and conditions under which US Armed
Forces and defense personnel may be present in the Philippines, and is quoted in its full
text, hereunder:

Article I
Definitions
As used in this Agreement, United States personnel means United States military
and civilian personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services Organization.

Article II
Respect for Law

It is the duty of the United States personnel to respect the laws of the Republic of
the Philippines and to abstain from any activity inconsistent with the spirit of this
agreement, and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to
ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in connection with
activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be
required in respect of United States military personnel who enter the
Philippines:
(a) personal identity card issued by the appropriate United States authority
showing full name, date of birth, rank or grade and service number (if
any), branch of service and photograph;
(b) individual or collective document issued by the appropriate United States
authority, authorizing the travel or visit and identifying the individual or
group as United States military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a
declaration of health, and when required by the cognizant representative of
the Government of the Philippines, shall conduct a quarantine inspection
and will certify that the aircraft or vessel is free from quarantinable
diseases. Any quarantine inspection of United States aircraft or United
States vessels or cargoes thereon shall be conducted by the United States
commanding officer in accordance with the international health
regulations as promulgated by the World Health Organization, and
mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but
shall present, upon demand, valid passports upon entry and departure of the
Philippines.

5. If the Government of the Philippines has requested the removal of any United
States personnel from its territory, the United States authorities shall be
responsible for receiving the person concerned within its own territory or
otherwise disposing of said person outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit
or license issued by the appropriate United States authority to United States
personnel for the operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered,
but shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with
respect to offenses committed within the Philippines and punishable under the
law of the Philippines.
(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the
military law of the United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security
of the Philippines, punishable under the laws of the Philippines, but not
under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security
of the United States, punishable under the laws of the United States, but not
under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense
relating to security means:

(1) treason;
(2) sabotage, espionage or violation of any law relating to national
defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules
shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the United
States in relation to.
(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official
duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular
case.
(d) Recognizing the responsibility of the United States military authorities to maintain
good order and discipline among their forces, Philippine authorities will, upon
request by the United States, waive their primary right to exercise jurisdiction
except in cases of particular importance to the Philippines. If the Government of
the Philippines determines that the case is of particular importance, it shall
communicate such determination to the United States authorities within twenty
(20) days after the Philippine authorities receive the United States request.
(e) When the United States military commander determines that an offense charged
by authorities of the Philippines against United states personnel arises out of an
act or omission done in the performance of official duty, the commander will issue
a certificate setting forth such determination. This certificate will be transmitted to
the appropriate authorities of the Philippines and will constitute sufficient proof of
performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In
those cases where the Government of the Philippines believes the circumstances
of the case require a review of the duty certificate, United States military
authorities and Philippine authorities shall consult immediately. Philippine
authorities at the highest levels may also present any information bearing on its
validity. United States military authorities shall take full account of the Philippine
position. Where appropriate, United States military authorities will take
disciplinary or other action against offenders in official duty cases, and notify the
Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall
notify the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of
the disposition of all cases in which both the authorities of the Philippines and the
United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and
United States shall assist each other in the arrest of United States personnel in the
Philippines and in handling them over to authorities who are to exercise jurisdiction
in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the
arrest or detention of United States personnel who are subject of Philippine primary

or exclusive jurisdiction. Philippine authorities shall promptly notify United States


military authorities of the arrest or detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so
request, from the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense
with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding
custody, which the United States Government shall take into full account. In the
event Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one-year
period will not include the time necessary to appeal. Also, the one-year period will
not include any time during which scheduled trial procedures are delayed because
United States authorities, after timely notification by Philippine authorities to arrange
for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall
assist each other in the carrying out of all necessary investigation into offenses and
shall cooperate in providing for the attendance of witnesses and in the collection
and production of evidence, including seizure and, in proper cases, the delivery of
objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of
this Article and have been acquitted or have been convicted and are serving, or
have served their sentence, or have had their sentence remitted or suspended, or
have been pardoned, they may not be tried again for the same offense in the
Philippines. Nothing in this paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation of rules of discipline
arising from the act or omission which constituted an offense for which they were
tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established
by the law of the Philippines. At the minimum, United States personnel shall be
entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against
them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such
witnesses;
(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the same
basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and

(g) To communicate promptly with and to be visited regularly by United States


authorities, and to have such authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in accordance with Philippine laws,
excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel
shall be carried out in facilities agreed on by appropriate Philippine and United
States authorities. United States Personnel serving sentences in the Philippines
shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or
religious courts.

Article VI
Claims
1. Except for contractual arrangements, including United States foreign military sales
letters of offer and acceptance and leases of military equipment, both governments
waive any and all claims against each other for damage, loss or destruction to
property of each others armed forces or for death or injury to their military and
civilian personnel arising from activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and those to
which paragraph 1 applies, the United States Government, in accordance with
United States law regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage, loss, personal injury
or death, caused by acts or omissions of United States personnel, or otherwise
incident to the non-combat activities of the United States forces.

Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall be
free of all Philippine duties, taxes and other similar charges. Title to such property
shall remain with the United States, which may remove such property from the
Philippines at any time, free from export duties, taxes, and other similar charges.
The exemptions provided in this paragraph shall also extend to any duty, tax, or
other similar charges which would otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines. Such property may be
removed from the Philippines, or disposed of therein, provided that disposition of
such property in the Philippines to persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to payment of such taxes, and duties
and prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for
the personal use of United States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar charges during the period of
their temporary stay in the Philippines. Transfers to persons or entities in the

Philippines not entitled to import privileges may only be made upon prior approval of
the appropriate Philippine authorities including payment by the recipient of
applicable duties and taxes imposed in accordance with the laws of the Philippines.
The exportation of such property and of property acquired in the Philippines by
United States personnel shall be free of all Philippine duties, taxes, and other similar
charges.

Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines in accordance with procedures
stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines. The movement of vessels shall
be in accordance with international custom and practice governing such vessels,
and such agreed implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces
shall not be subject to the payment of landing or port fees, navigation or over flight
charges, or tolls or other use charges, including light and harbor dues, while in the
Philippines. Aircraft operated by or for the United States armed forces shall observe
local air traffic control regulations while in the Philippines. Vessels owned or
operated by the United States solely on United States Government non-commercial
service shall not be subject to compulsory pilotage at Philippine ports.

Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have
notified each other in writing through the diplomatic channel that they have
completed their constitutional requirements for entry into force. This agreement
shall remain in force until the expiration of 180 days from the date on which
either party gives the other party notice in writing that it desires to terminate the
agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as
legislators, non-governmental organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute to herein respondents grave abuse of discretion
in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators


to question the constitutionality of the VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25,
Article XVIII of the Constitution?
III

Does the VFA constitute an abdication of Philippine sovereignty?


a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV

Does the VFA violate:


a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US Armed Forces?

LOCUS STANDI

At the outset, respondents challenge petitioners standing to sue, on the ground that
the latter have not shown any interest in the case, and that petitioners failed to
substantiate that they have sustained, or will sustain direct injury as a result of the
operation of the VFA.[12] Petitioners, on the other hand, counter that the validity or
invalidity of the VFA is a matter of transcendental importance which justifies their
standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must
show not only that the law is invalid, but also that he has sustained or in is in immediate,
or imminent danger of sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. He must show that he has
been, or is about to be, denied some right or privilege to which he is lawfully entitled, or
that he is about to be subjected to some burdens or penalties by reason of the statute
complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that
they have sustained, or are in danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have not established that the VFA
involves the exercise by Congress of its taxing or spending powers. [15] On this point, it

bears stressing that a taxpayers suit refers to a case where the act complained of
directly involves the illegal disbursement of public funds derived from taxation. [16] Thus,
inBugnay Const. & Development Corp. vs. Laron[17], we held:

x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be


benefited or injured by the judgment or entitled to the avails of the suit as a real party
in interest. Before he can invoke the power of judicial review, he must specifically
prove that he has sufficient interest in preventing the illegal expenditure of money
raised by taxation and that he will sustain a direct injury as a result of the enforcement
of the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation are involved in this case,
and in the absence of any allegation by petitioners that public funds are being misspent
or illegally expended, petitioners, as taxpayers, have no legal standing to assail the
legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present
suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,
[18]
sustained the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a condition imposed on
an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners
standing as members of Congress, in the absence of a clear showing of any direct
injury to their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the
delegation of the power of Congress to grant tax exemptions, are more apparent than
real. While it may be true that petitioners pointed to provisions of the VFA which
allegedly impair their legislative powers, petitioners failed however to sufficiently show
that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of
standing in these cases. As aptly observed by the Solicitor General, the IBP lacks the
legal capacity to bring this suit in the absence of a board resolution from its Board of
Governors authorizing its National President to commence the present action. [19]
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of its sound
discretion, brushes aside the procedural barrier and takes cognizance of the petitions,
as we have done in the early Emergency Powers Cases,[20] where we had occasion to
rule:

x x x ordinary citizens and taxpayers were allowed to question the constitutionality of


several executive orders issued by President Quirino although they were involving
only an indirect and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled

that transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must, technicalities of
procedure. We have since then applied the exception in many other
cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, 175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,
Daza vs. Singson,[22] and Basco vs. Phil. Amusement and Gaming Corporation,
[23]
where we emphatically held:
[21]

Considering however the importance to the public of the case at bar, and in keeping
with the Courts duty, under the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them,
the Court has brushed aside technicalities of procedure and has taken cognizance of
this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled
that in cases of transcendental importance, the Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to
the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on
the doctrine of separation of powers, which enjoins upon the departments of the
government a becoming respect for each others acts, [25] this Court nevertheless resolves
to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision
of the Constitution applies, with regard to the exercise by the senate of its constitutional
power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is
applicable considering that the VFA has for its subject the presence of foreign military
troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article
VII should apply inasmuch as the VFA is not a basing arrangement but an agreement
which involves merely the temporary visits of United States personnel engaged in joint
military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence
of the Senate on treaties or international agreements. Section 21, Article VII, which
herein respondents invoke, reads:

No treaty or international agreement shall be valid and effective unless concurred in


by at least two-thirds of all the Members of the Senate.

Section 25, Article XVIII, provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
Section 21, Article VII deals with treatise or international agreements in general, in
which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate
is required to make the subject treaty, or international agreement, valid and binding on
the part of the Philippines. This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or tax treatise or those economic in
nature. All treaties or international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular designation or appellation, requires
the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties
which involve the presence of foreign military bases, troops or facilities in the
Philippines.Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to consider the
agreement binding on the Philippines. Section 25, Article XVIII further requires that
foreign military bases, troops, or facilities may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast
in a national referendum held for that purpose if so required by Congress, and
recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting
each other, actually share some common ground. These constitutional provisions both
embody phrases in the negative and thus, are deemed prohibitory in mandate and
character. In particular, Section 21 opens with the clause No treaty x x x, and Section 25
contains the phrase shall not be allowed. Additionally, in both instances, the
concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under
Section 21, Article VII, and that the Senate extended its concurrence under the same
provision, is immaterial. For in either case, whether under Section 21, Article VII or
Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the
Senate is mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines. It provides for the guidelines to
govern such visits of military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal jurisdiction, movement of
vessel and aircraft, importation and exportation of equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops, or facilities, should apply in the instant case. To
a certain extent and in a limited sense, however, the provisions of section 21, Article VII
will find applicability with regard to the issue and for the sole purpose of determining the
number of votes required to obtain the valid concurrence of the Senate, as will be
further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or
law prevails over a general one. Lex specialis derogat generali. Thus, where there is
in the same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only
such cases within its general language which are not within the provision of the
particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:

x x x that another basic principle of statutory construction mandates that general


legislation must give way to a special legislation on the same subject, and generally be
so interpreted as to embrace only cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute
prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where
two statutes are of equal theoretical application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to
mere transient agreements for the reason that there is no permanent placing of
structure for the establishment of a military base. On this score, the Constitution makes
no distinction between transient and permanent. Certainly, we find nothing in Section
25, Article XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the
Court should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is
not controlling since no foreign military bases, but merely foreign troops and facilities,
are involved in the VFA. Notably, a perusal of said constitutional provision reveals that
the proscription covers foreign military bases, troops, or facilities. Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases
being established. The clause does not refer to foreign military bases,
troops, or facilitiescollectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word or clearly signifies disassociation
and independence of one thing from the others included in the enumeration, [28] such
that, the provision contemplates three different situations - a military treaty the subject of
which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any
of the three standing alone places it under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the
three-bases, troops or facilities-or could the treaty entered into cover only one or
two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything.[29] (Underscoring Supplied)

Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare such
as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in
the sea even for months and years without returning to their home country. These
military warships are actually used as substitutes for a land-home base not only of
military aircraft but also of military personnel and facilities. Besides, vessels are mobile
as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements
of Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (a) it must be under
atreaty; (b) the treaty must be duly concurred in by the Senate and, when so required
by congress, ratified by a majority of the votes cast by the people in a national
referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the
VFA. The concurrence handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25,
Article XVIII, the provision in the latter article requiring ratification by a majority of the
votes cast in a national referendum being unnecessary since Congress has not required
it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty
or international agreement, to be valid and effective, must be concurred in by at least

two-thirds of all the members of the Senate. On the other hand, Section 25, Article
XVIII simply provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the
members of the Senate is clearly required so that the concurrence contemplated by law
may be validly obtained and deemed present. While it is true that Section 25, Article
XVIII requires, among other things, that the treaty-the VFA, in the instant case-be duly
concurred in by the Senate, it is very true however that said provision must be related
and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed,
Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be
construed in relation to the provisions of Section 21, Article VII. In a more particular
language, the concurrence of the Senate contemplated under Section 25, Article XVIII
means that at least two-thirds of all the members of the Senate favorably vote to concur
with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed
of twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or
not less than sixteen (16) members, favorably acting on the proposal is an
unquestionable compliance with the requisite number of votes mentioned in Section 21
of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at
the time the voting was made,[31] will not alter in any significant way the circumstance
that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members
(23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at
least 16 favorable votes, suffice so as to render compliance with the strict constitutional
mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII
are present, we shall now pass upon and delve on the requirement that the VFA should
be recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25,
Article XVIII, means that the VFA should have the advice and consent of the United
States Senate pursuant to its own constitutional process, and that it should not be
considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador
Hubbard stating that the VFA is binding on the United States Government is conclusive,
on the point that the VFA is recognized as a treaty by the United States of
America. According to respondents, the VFA, to be binding, must only be accepted as a
treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that
the other contracting party accepts or acknowledges the agreement as a treaty.[32] To
require the other contracting state, the United States of America in this case, to

submit the VFA to the United States Senate for concurrence pursuant to its Constitution,
[33]
is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be
given their ordinary meaning except where technical terms are employed, in which case
the significance thus attached to them prevails. Its language should be understood in
the sense they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as
binding as a treaty.[35] To be sure, as long as the VFA possesses the elements of an
agreement under international law, the said agreement is to be taken equally as a
treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation. [36] There are many other terms used
for a treaty or international agreement, some of which are: act, protocol,
agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes,
pact, statute, charter andmodus vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international agreements included under the
general term treaty have little or no legal significance. Certain terms are useful, but they
furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the use of
those terms, or to the meanings which may be given to them in the internal law of the
State.
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 remained within their powers. [38] International law continues to make
no distinction between treaties and executive agreements: they are equally binding
obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements
even without the concurrence of the Senate or Congress. In Commissioner of
Customs vs. Eastern Sea Trading,[40] we had occasion to pronounce:

x x x the right of the Executive to enter into binding agreements without the necessity
of subsequent congressional approval 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-nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and
the settlement of claims. The validity of these has never been seriously questioned by
our courts.

xxxxxxxxx

Furthermore, the United States Supreme Court has expressly recognized the validity
and constitutionality of executive agreements entered into without Senate
approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis
Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301
U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S.
188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review,
Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp.
1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp.
537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987
Constitution is enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, 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.[41]

The records reveal that the United States Government, through Ambassador
Thomas C. Hubbard, has stated that the United States government has fully committed
to living up to the terms of the VFA. [42] For as long as the united States of America
accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its
obligations under the treaty, there is indeed marked compliance with the mandate of the
Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our
nations consent to be bound by said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the
state or of the government, as the case may be, through which the formal acceptance of
the treaty is proclaimed.[43] A State may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such ratification, (b) it is otherwise
established that the negotiating States agreed that ratification should be required, (c)
the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full
powers of its representative, or was expressed during the negotiation. [44]
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification. [45]

With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law,
to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,[46] declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by
generally accepted rules for the conduct of its international relations. While the
international obligation devolves upon the state and not upon any particular branch,
institution, or individual member of its government, the Philippines is nonetheless
responsible for violations committed by any branch or subdivision of its government or
any official thereof. As an integral part of the community of nations, we are responsible
to assure that our government, Constitution and laws will carry out our international
obligation.[47] Hence, we cannot readily plead the Constitution as a convenient excuse for
non-compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by
the International Law Commission in 1949 provides: Every State has the duty to carry
out in good faith its obligations arising from treaties and other sources of international
law, and it may not invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty in
force is binding upon the parties to it and must be performed by them in good faith. This
is known as the principle of pacta sunt servanda which preserves the sanctity of treaties
and have been one of the most fundamental principles of positive international law,
supported by the jurisprudence of international tribunals. [49]
NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a
power and performing a task conferred upon him by the Constitution-the power to enter
into and ratify treaties. Through the expediency of Rule 65 of the Rules of Court,
petitioners in these consolidated cases impute grave abuse of discretion on the part
of the chief Executive in ratifying the VFA, and referring the same to the Senate
pursuant to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the
power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive duty
enjoined or to act at all in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head
of State, is the sole organ and authority in the external affairs of the country. In many

ways, the President is the chief architect of the nations foreign policy; his dominance in
the field of foreign relations is (then) conceded. [51] Wielding vast powers an influence, his
conduct in the external affairs of the nation, as Jefferson describes, is executive
altogether."[52]
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence of at least
two-thirds vote of all the members of the Senate. In this light, the negotiation of the VFA
and the subsequent ratification of the agreement are exclusive acts which pertain solely
to the President, in the lawful exercise of his vast executive and diplomatic powers
granted him no less than by the fundamental law itself. Into the field of negotiation the
Senate cannot intrude, and Congress itself is powerless to invade it.[53] Consequently,
the acts or judgment calls of the President involving the VFA-specifically the acts of
ratification and entering into a treaty and those necessary or incidental to the exercise of
such principal acts - squarely fall within the sphere of his constitutional powers and thus,
may not be validly struck down, much less calibrated by this Court, in the absence of
clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in
submitting the same to the Senate for concurrence, acted within the confines and limits
of the powers vested in him by the Constitution. It is of no moment that the President, in
the exercise of his wide latitude of discretion and in the honest belief that the VFA falls
within the ambit of Section 21, Article VII of the Constitution, referred the VFA to the
Senate for concurrence under the aforementioned provision. Certainly, no abuse of
discretion, much less a grave, patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA and referring the same to the
Senate for the purpose of complying with the concurrence requirement embodied in the
fundamental law. In doing so, the President merely performed a constitutional task and
exercised a prerogative that chiefly pertains to the functions of his office. Even if he
erred in submitting the VFA to the Senate for concurrence under the provisions of
Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still,
the President may not be faulted or scarred, much less be adjudged guilty of committing
an abuse of discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has
broadened the scope of judicial inquiry into areas normally left to the political
departments to decide, such as those relating to national security, it has not altogether
done away with political questions such as those which arise in the field of foreign
relations.[54] The High Tribunals function, as sanctioned by Article VIII, Section 1, is
merely (to) check whether or not the governmental branch or agency has gone beyond
the constitutional limits of its jurisdiction, not that it erred or has a different view. In the
absence of a showing (of) grave abuse of discretion amounting to lack of jurisdiction,
there is no occasion for the Court to exercise its corrective powerIt has no power to look
into what it thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the
Senate alone. Thus, once the Senate[56] performs that power, or exercises its prerogative
within the boundaries prescribed by the Constitution, the concurrence cannot, in like

manner, be viewed to constitute an abuse of power, much less grave abuse


thereof.Corollarily, the Senate, in the exercise of its discretion and acting within the
limits of such power, may not be similarly faulted for having simply performed a task
conferred and sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character;
the Senate, as an independent body possessed of its own erudite mind, has the
prerogative to either accept or reject the proposed agreement, and whatever action it
takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than
the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in
keeping the principles of separation of powers and of checks and balances alive and vigilantly
ensures that these cherished rudiments remain true to their form in a democratic
government such as ours. The Constitution thus animates, through this treatyconcurring power of the Senate, a healthy system of checks and balances
indispensable toward our nations pursuit of political maturity and growth. True enough,
rudimentary is the principle that matters pertaining to the wisdom of a legislative act are
beyond the ambit and province of the courts to inquire.
[57]

In fine, absent any clear showing of grave abuse of discretion on the part of
respondents, this Court- as the final arbiter of legal controversies and staunch sentinel
of the rights of the people - is then without power to conduct an incursion and meddle
with such affairs purely executive and legislative in character and nature. For the
Constitution no less, maps out the distinct boundaries and limits the metes and bounds
within which each of the three political branches of government may exercise the
powers exclusively and essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, GonzagaReyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno, J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations with
a petitioner, Sen. J.R. Salonga.

[1]

Article V. Any such armed attack and all measures taken as a result thereof shall be immediately
reported to the Security Council of the United Nations. Such measures shall be terminated when the
Security Council has taken the measure necessary to restore and maintain international peace and
security.
[2]

Joint Report of the Senate Committee on Foreign Relation and the Committee on National Defense and
Security on the Visiting Forces Agreement.
[3]

Joint Committee Report.

[4]

Petition, G.R. No. 138698, Annex B, Rollo, pp. 61-62.

INSTRUMENT OF RATIFICATION
TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:
KNOW YE, that whereas, the Agreement between the government of the Republic of the Philippines and
the Government of the United States of America Regarding the Treatment of the United States Armed
Forces Visiting the Philippines, hereinafter referred to as VFA, was signed in Manila on 10 February 1998;
WHEREAS, the VFA is essentially a framework to promote bilateral defense cooperation between the
Republic of the Philippines and the United States of America and to give substance to the 1951 RP-US
Mutual Defense Treaty (RP-US MDT). To fulfill the objectives of the RP-US MDT, it is necessary that
regular joint military exercises are conducted between the Republic of the Philippines and the United
States of America;
WHEREAS, the VFA seeks to provide a conducive setting for the successful conduct of combined military
exercises between the Philippines and the United States armed forces to ensure interoperability of the
RP-US MDT;
WHEREAS, in particular, the VFA provides the mechanism for regulating the circumstances and
conditions under which US armed forces and defense personnel may be present in the Philippines such
as the following inter alia:
(a) specific requirements to facilitate the admission of United States personnel and their departure from
the Philippines in connection with activities covered by the agreement;
(b) clear guidelines on the prosecution of offenses committed by any member of the United States armed
forces while in the Philippines;
(c) precise directive on the importation and exportation of United States Government equipment,
materials, supplies and other property imported into or acquired in the Philippines by or on behalf of the
United States armed forces in connection with activities covered by the Agreement; and
(d) explicit regulations on the entry of United States vessels, aircraft, and vehicles;
WHEREAS, Article IX of the Agreement provides that it shall enter into force on the date on which the
Parties have notified each other in writing, through diplomatic channels, that they have completed their
constitutional requirements for its entry into force. It shall remain in force until the expiration of 180 days
from the date on which either Party gives the other Party written notice to terminate the Agreement.
NOW, THEREFORE, be it known that I, JOSEPH EJERCITO ESTRADA, President of the Republic of the
Philippines, after having seen and considered the aforementioned Agreement between the Government of
the United States of America Regarding the Treatment of the United States Armed Forces Visiting the
Philippines, do hereby ratify and confirm the same and each and every Article and Clause thereof.
IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.
GIVEN under my hand at the City of Manila, this 5th day of October, in the year of Our Lord one thousand
nine hundred and ninety-eight.
[5]

Petition, G.R. No. 138587, Annex C, Rollo, p. 59.

The Honorable Senate President and


Member of the Senate
Senate of the Philippines
Pasay City
Gentlemen and Ladies of the Senate:
I have the honor to transmit herewith the Instrument of Ratification duly signed by H.E. President Joseph
Ejercito Estrada, his message to the Senate and a draft Senate Resolution of Concurrence in connection

with the ratification of the AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA REGARDING THE
TREATMENT OF THE UNITED STATES ARMED FORCES VISITING THE PHILIPPINES.
With best wishes.
Very truly yours,
RONALDO B. ZAMORA
Executive Secretary
[6]

Petition, G.R. No. 138698, Annex C.

[7]

Between January 26 and March 11, 1999, the two Committees jointly held six public hearings-three in
Manila and one each in General Santos, Angeles City and Cebu City.
[8]

Petition , G.R. No. 138570, Annex C, Rollo, pp. 88-95.

WHEREAS, the VFA is essentially a framework for promoting the common security interest of the two
countries; and for strengthening their bilateral defense partnership under the 1951 RP-US Mutual
Defense Treaty;
xxxxxxxxx
WHEREAS, the VFA does not give unrestricted access or unhampered movement to US Forces in the
Philippines; in fact, it recognizes the Philippine government as the sole authority to approve the conduct
of any visit or activity in the country by US Forces, hence the VFA is not a derogation of Philippine
sovereignty;
WHEREAS, the VFA is not a basing arrangement; neither does it pave way for the restoration of the
American bases and facilities in the Philippines, in contravention of the prohibition against foreign bases
and permanent stationing of foreign troops under Article XVIII, Section 25 of the 1987 Constitutionbecause the agreement envisions only temporary visits of US personnel engaged in joint military
exercises or other activities as may be approved by the Philippine Government;
WHEREAS, the VFA gives Philippine courts primary jurisdiction over offenses that may be committed by
US personnel within Philippine territory, with the exception of those incurred solely against the security or
property of the Us or solely against the person or property of US personnel, and those committed in the
performance of official duty;
xxxxxxxxx
WHEREAS, by virtue of Article II of the VFA, the United States commits to respect the laws of the
Republic of the Philippines, including the Constitution, which declares in Article II, Section 8 thereof, a
policy of freedom from nuclear weapons consistent with the national interest;
WHEREAS, the VFA shall serve as the legal mechanism to promote defense cooperation between two
countries-enhancing the preparedness of the Armed Forces of the Philippines against external threats;
and enabling the Philippines to bolster the stability of the Pacific area in a shared effort with its neighborstates;
WHEREAS, the VFA will enhance our political, economic and security partnership and cooperation with
the United States-which has helped promote the development of our country and improved the lives of
our people;
WHEREAS, in accordance with the powers and functions of Senate as mandated by the Constitution, this
Chamber, after holding several public hearings and deliberations, concurs in the Presidents ratification of
the VFA, for the following reasons:
(1) The Agreement will provide the legal mechanism to promote defense cooperation between the
Philippines and the U.S. and thus enhance the tactical, strategic, and technological capabilities of our
armed forces;

(2) The Agreement will govern the treatment of U.S., military and defense personnel within Philippine
territory, while they are engaged in activities covered by the Mutual Defense Treaty and conducted with
the prior approval of the Philippine government; and
(3) The Agreement will provide the regulatory mechanism for the circumstances and conditions under
which U.S. military forces may visit the Philippines; x x x
xxxxxxxxx
WHEREAS, in accordance with Article IX of the VFA, the Philippine government reserves the right to
terminate the agreement unilaterally once it no longer redounds to our national interest: Now, therefore,
be it
Resolved, that the Senate concur, as it hereby concurs, in the Ratification of the Agreement between the
Government of the Republic of the Philippines and the United States of America Regarding the Treatment
of United States Armed Forces visiting the Philippines. x x x
[9]

The following voted for concurrence: (1) Senate President Marcelo Fernan, (2) Senate
President Pro Tempore Blas Ople, (3) Senator Franklin Drilon, (4) Senator Rodolfo Biazon, (5) Senator
Francisco Tatad, (6) Senator Renato Cayetano, (7) Senator Teresa Aquino-Oreta, (8) Senator Robert
Barbers, (9) Senator Robert Jaworski, (10) Senator Ramon Magsaysay, Jr., (11) Senator John Osmea,
(12) Senator Juan Flavier, (13) Senator Mirriam Defensor-Santiago, (14) Senator Juan Ponce-Enrile, (15)
Senator Vicente Sotto III, (16) Senator Ramon Revilla, (17) Senator Anna Dominique Coseteng, and (18)
Senator Gregorio Honasan.
Only the following voted to reject the ratification of the VFA: (1) Senator Teofisto Guingona, Jr., (2)
Senator Raul Roco, (3) Senator Sergio Osmena III, (4) Senator Aquilino Pimentel, Jr., and (5) Senator
Loren Legarda-Leviste.
[10]

See Petition, G.R. No. 138570, Rollo, pp. 105.

[11]

Minute Resolution dated June 8, 1999.

[12]

See Consolidated Comment.

[13]

Reply to Consolidated Comment, G.R. No. 138698; G.R. No. 138587.

[14]

Valmonte vs. Philippine Charity Sweepstakes Office, (Res.) G.R. No. 78716, September 22, 1987,
cited in Telecommunications and Broadcast Attorneys of the Philippines, Inc. vs. COMELEC, 289 SCRA
337, 343 [1998]; Valley Forge College vs. Americans United, 454 US 464, 70 L. Ed. 2d 700 [1982];
Bugnay Const. And Dev. Corp. vs. Laron, 176 SCRA 240, 251-252 [1989]; Tatad vs. Garcia, Jr. 243 SCRA
436, 473 [1995].
[15]

See Article VI, Sections 24, 25 and 29 of the 1987 Constitution.

[16]

Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]; Maceda vs. Macaraig, 197 SCRA 771
[1991]; Lozada vs. COMELEC, 120 SCRA 337 [1983]; Dumlao vs. COMELEC, 95 SCRA 392 [1980];
Gonzales vs. Marcos, 65 SCRA 624 [1975].
[17]

176 SCRA 240, 251-252 [1989].

[18]

235 SCRA 506 [1994].

[19]

Consolidated Memorandum, p. 11.

[20]

Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay & Corn Planters Association vs. Feliciano, 121
Phil. 358 [1965]; Philippine Constitution Association vs. Gimenez, 122 Phil. 894 [1965].
[21]

21 SCRA 774 [1967].

[22]

180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs. Guingona, Jr., 232 SCRA 110 [1994].

[23]

197 SCRA 52, 60 [1991].

[24]

232 SCRA 110 [1994].

[25]

J. Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261 [1992].

[26]

Manila Railroad Co. vs. Collector of Customs, 52 Phil. 950.

[27]

157 SCRA 282 [1988] cited in Republic vs. Sandiganbayan, 173 SCRA 72, 85 [1989].

[28]

Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).

[29]

Records of the Constitutional Commission, September 18, 1986 Deliberation, p. 782.

[30]

1987 Constitution, Article VI, Section 2. - the Senate shall be composed of twenty-four Senators who
shall be elected at large by the qualified voters of the Philippines, as may be provided by law.
[31]

The 24th member (Gloria Macapagal-Arroyo) of the Senate whose term was to expire in 2001 was
elected Vice-President in the 1998 national elections.
[32]

Ballentines Legal Dictionary, 1995.

[33]

Article 2, Section 2, paragraph 2 of the United States Constitution, speaking of the United States
President provides: He shall have power, by and with the advice and consent of the Senate to make
treaties, provided two-thirds of the senators present concur.
[34]

J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31 SCRA 413 [1970].

[35]

Altman Co. vs. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago, International
Law, 1998 Ed. P. 497.
[36]

Vienna Convention, Article 2.

[37]

Gerhard von Glahn, Law among Nations, an Introduction to Public International Law, 4th Ed., p. 480.

[38]

Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans Association Inc. vs.
Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959].
[39]

Richard J. Erickson, The Making of Executive Agreements by the United States Department of
Defense: An agenda for Progress, 13 Boston U. Intl. L.J. 58 [1995], citing Restatement [third] of Foreign
Relations Law pt. III, introductory note [1987] and Paul Reuter, Introduction to the Law of Treaties 22
[Jose Mico & Peter Haggemacher trans., 1989] cited in Consolidated Memorandum, p. 32.
[40]

3 SCRA 351, 356-357 [1961].

[41]

4 Record of the Constitutional Commission 782 [Session of September 18, 1986].

[42]

Letter of Ambassador Hubbard to Senator Miriam Defensor-Santiago:

Dear Senator Santiago:


I am happy to respond to your letter of April 29, concerning the way the US Government views the
Philippine-US Visiting Forces Agreement in US legal terms. You raise an important question and I believe
this response will help in the Senate deliberations.
As a matter of both US and international law, an international agreement like the Visiting Forces
Agreement is legally binding on the US Government, In international legal terms, such an agreement is a
treaty.However, as a matter of US domestic law, an agreement like the VFA is an executive agreement,
because it does not require the advice and consent of the senate under Article II, section 2 of our
Constitution.
The Presidents power to conclude the VFA with the Philippines, and other status of forces agreements
with the other countries, derives from the Presidents responsibilities for the conduct of foreign
relations (Art. II, Sec. 1) and his constitutional powers as Commander in Chief of the Armed
Forces. Senate advice and consent is not needed, inter alia, because the VFA and similar agreements
neither change US domestic nor require congressional appropriation of funds. It is important to note that

only about five percent of the international agreement entered into by the US Governments require
Senate advice and consent. However, in terms of the US Governments obligation to adhere to the terms
of the VFA, there is no difference between a treaty concurred in by our Senate and an executive
agreement. Background information on these points can be found in the Restatement 3rd of the Foreign
Relations Law of the United States, Sec. 301, et seq. [1986].
I hope you find this answer helpful. As the Presidents representative to the Government of the
Philippines, I can assure you that the United States Government is fully committed to living up to the
terms of the VFA.
Sincerely yours,
THOMAS C. HUBBARD
Ambassador
[43]

Gerhard von Glahn, Law Among Nations, An Introduction to Public International Law, 4th Ed., p. 486.

[44]

Article 14 of the Vienna Convention, cited in Coquia and Defensor-Santiago, Intenational Law, 1998
Ed., pp. 506-507.
[45]

Cruz, Isagani, International Law, 1985 Ed., p. 175.

[46]

Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.
[47]

Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials,
2nd Ed American Casebook Series, p. 136.
[48]

Gerhard von Glah, supra, p. 487.

[49]

Harris, p. 634 cited in Coquia, International Law, supra, p. 512.

[50]

Cuison vs. CA, 289 SCRA 159 [1998]. See also Jardine vs. NLRC, G.R. No. 119268, Feb 23, 2000
citing Arroyo vs. De Venecia, 277 SCRA 268 [1997].
[51]

Cortes, The Philippine Presidency a study of Executive Power, 2nd Ed., p. 195.

[52]

Cruz, Phil. Political Law, 1995 Ed., p. 223.

[53]

United States vs. Curtis Wright Corp., 299 U.S. 304 (1934), per Justice Sutherland.

[54]

Arroyo vs. De Venecia, 277 SCRA 269 [1997].

[55]

Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 701 (1991); Llamas vs.
Orbos, 202 SCRA 849, 857 (1991); Lansang vs. Garcia, 42 SCRA at 480-481 [1971].
[56]

1987 Constitution, Article VI, Section 1. - The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum.
[57]

See Akehurst, Michael: Modern Introduction to International Law, (London: George Allen and Unwin)
5th ed., p. 45; United States vs. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

QUALIFICATIONS AND JBC


Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and
HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p
We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues
are involved, the Court's decision in this case would indubitably have a profound effect on the
political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the 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. However, a majority thereof, including the Chairman, shall be members of
the Philippine Bar who have been engaged in the practice of law for at least ten
years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which
similarly provides:
There shall be an independent Commission on Elections composed of a Chairman and eight
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age and holders of a college degree. However, a majority
thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a
legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is not
limited to appearing in court, or advising and assisting in the conduct of litigation, but
embraces the preparation of pleadings, and other papers incident to actions and
special proceedings, conveyancing, the preparation of legal instruments of all kinds,
and the giving of all legal advice to clients. It embraces all advice to clients and all
actions taken for them in matters connected with the law. An attorney engages in the
practice of law by maintaining an office where he is held out to be-an attorney, using
a letterhead describing himself as an attorney, counseling clients in legal matters,
negotiating with opposing counsel about pending litigation, and fixing and collecting
fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co.
v. Dworken,129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law
when he:

... for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective,
before any court, commissioner, referee, board, body, committee, or commission
constituted by law or authorized to settle controversies and there, in such
representative capacity performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising clients as to their rights
under the law, or while so engaged performs any act or acts either in court or outside
of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick
v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions and
special proceedings, the management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveying. In general, all advice to
clients, and all action taken for them in mattersconnected with the law incorporation
services, assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's
claim in bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have been held to constitute
law practice, as do the preparation and drafting of legal instruments, where the work
done involves the determination by the trained legal mind of the legal effect of facts
and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work performed
outside of any court and having no immediate relation to proceedings in court. It
embraces conveyancing, the giving of legal advice on a large variety of subjects, and
the preparation and execution of legal instruments covering an extensive field of
business and trust relations and other affairs. Although these transactions may have
no direct connection with court proceedings, they are always subject to become
involved in litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an attorney or counselor at law
bear an intimate relation to the administration of justice by the courts. No valid
distinction, so far as concerns the question set forth in the order, can be drawn
between that part of the work of the lawyer which involves appearance in court and
that part which involves advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill, of sound moral
character, and acting at all times under the heavy trust obligations to clients which
rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] ,
p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted
in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144).
(Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers
(1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy,
counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual for
attorneys engaging in the active practice of their profession, and he follows some
one or more lines of employment such as this he is a practicing attorney at law within
the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice of law is to perform those
acts which are characteristics of the profession. Generally, to practice law is to give notice or render
any kind of service, which device or service requires the use in any degree of legal knowledge or
skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has adopted a liberal
interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a
manifestation which I forgot to do during our review of the provisions
on the Commission on Audit. May I be allowed to make a very brief
statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for
by Section I is that "They must be Members of the Philippine Bar" I
am quoting from the provision "who have been engaged in the
practice of law for at least ten years".
To avoid any misunderstanding which would result in excluding members of the Bar
who are now employed in the COA or Commission on Audit, we would like to make
the clarification that this provision on qualifications regarding members of the Bar
does not necessarily refer or involve actual practice of law outside the COA We have
to interpret this to mean that as long as the lawyers who are employed in the COA
are using their legal knowledge or legal talent in their respective work within COA,
then they are qualified to be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions and
Agencies and we deem it important to take it up on the floor so that this interpretation
may be made available whenever this provision on the qualifications as regards
members of the Philippine Bar engaging in the practice of law for at least ten years is
taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.


MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a
lawyer is equivalent to the requirement of a law practice that is set
forth in the Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although
it is auditing, will necessarily involve legal work; it will involve legal
work. And, therefore, lawyers who are employed in COA now would
have the necessary qualifications in accordance with the Provision on
qualifications under our provisions on the Commission on Audit. And,
therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is
equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and
two Commissioners of the Commission on Audit (COA) should either be certified public accountants
with not less than ten years of auditing practice, or members of the Philippine Bar who have been
engaged in the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous with the
word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that
the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM
Career Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as commonly understood,
means "an individual or organization engaged in the business of delivering legal services." (Ibid.).
Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called
"firms." The firm is usually a partnership and members of the firm are the partners. Some firms may
be organized as professional corporations and the members called shareholders. In either case, the
members of the firm are the experienced attorneys. In most firms, there are younger or more
inexperienced salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is essentially
tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law
is defined as the performance of any acts . . . in or out of court, commonly understood to be the
practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870
[1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because

lawyers perform almost every function known in the commercial and governmental realm, such a
definition would obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role
for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in
courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p.
593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much
of both the public image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.).
Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the
importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed
laymen whose concept of an attorney is one who principally tries cases before the courts. The
members of the bench and bar and the informed laymen such as businessmen, know that in most
developed societies today, substantially more legal work is transacted in law offices than in the
courtrooms. General practitioners of law who do both litigation and non-litigation work also know that
in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as
business counseling than in trying cases. The business lawyer has been described as the planner,
the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in
medicine, surgery should be avoided where internal medicine can be effective." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage in a number of legal
tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients,
and other interested parties. Even the increasing numbers of lawyers in specialized practice wig
usually perform at least some legal services outside their specialty. And even within a narrow
specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to
an importantly different one such as representing a client before an administrative agency.
(Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare
types a litigator who specializes in this work to the exclusion of much else. Instead, the work will
require the lawyer to have mastered the full range of traditional lawyer skills of client counselling,
advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of
evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very
important ways, at least theoretically, so as to remove from it some of the salient features of
adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both by the nature of the client and by the way in which
the lawyer is organized into a social unit to perform that work. The most common of these roles are
those of corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging trends in
corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in
corporate law practice. Lawyers and other professional groups, in particular those
members participating in various legal-policy decisional contexts, are finding that

understanding the major emerging trends in corporation law is indispensable to


intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an accurate
understanding of the nature and implications of the corporate law research function
accompanied by an accelerating rate of information accumulation. The recognition of
the need for such improved corporate legal policy formulation, particularly "modelmaking" and "contingency planning," has impressed upon us the inadequacy of
traditional procedures in many decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting and
weighing of significant conditional factors, the appraisal of major trends, the
necessity of estimating the consequences of given courses of action, and the need
for fast decision and response in situations of acute danger have prompted the use
of sophisticated concepts of information flow theory, operational analysis, automatic
data processing, and electronic computing equipment. Understandably, an improved
decisional structure must stress the predictive component of the policy-making
process, wherein a "model", of the decisional context or a segment thereof is
developed to test projected alternative courses of action in terms of futuristic effects
flowing therefrom.
Although members of the legal profession are regularly engaged in predicting and
projecting the trends of the law, the subject of corporate finance law has received
relatively little organized and formalized attention in the philosophy of advancing
corporate legal education. Nonetheless, a cross-disciplinary approach to legal
research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained
primarily in the law can be improved through an early introduction to multi-variable
decisional context and the various approaches for handling such problems. Lawyers,
particularly with either a master's or doctorate degree in business administration or
management, functioning at the legal policy level of decision-making now have some
appreciation for the concepts and analytical techniques of other professions which
are currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would require the
services of an astute attorney because of the complex legal implications that arise
from each and every necessary step in securing and maintaining the business issue
raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as the
"abogado de campanilla." He is the "big-time" lawyer, earning big money and with a
clientele composed of the tycoons and magnates of business and industry.
Despite the growing number of corporate lawyers, many people could not explain
what it is that a corporate lawyer does. For one, the number of attorneys employed
by a single corporation will vary with the size and type of the corporation. Many
smaller and some large corporations farm out all their legal problems to private law

firms. Many others have in-house counsel only for certain matters. Other corporation
have a staff large enough to handle most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal
affairs of a corporation. His areas of concern or jurisdiction may include, inter alia:
corporate legal research, tax laws research, acting out as corporate secretary (in
board meetings), appearances in both courts and other adjudicatory agencies
(including the Securities and Exchange Commission), and in other capacities which
require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal
affairs of the business of the corporation he is representing. These include such
matters as determining policy and becoming involved in management. ( Emphasis
supplied.)
In a big company, for example, one may have a feeling of being isolated from the
action, or not understanding how one's work actually fits into the work of the
orgarnization. This can be frustrating to someone who needs to see the results of his
work first hand. In short, a corporate lawyer is sometimes offered this fortune to be
more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law field. After
all, international law is practiced in a relatively small number of companies and law
firms. Because working in a foreign country is perceived by many as glamorous, tills
is an area coveted by corporate lawyers. In most cases, however, the overseas jobs
go to experienced attorneys while the younger attorneys do their "international
practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p.
4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To
borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer
is one who fails to spot problems, a good lawyer is one who perceives the difficulties,
and the excellent lawyer is one who surmounts them." (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to
speak. No longer are we talking of the traditional law teaching method of confining
the subject study to the Corporation Code and the Securities Code but an incursion
as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of particular
significance to the corporate counsel; (2) an introduction to usable disciplinary skins
applicable to a corporate counsel's management responsibilities; and (3) a devotion
to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared
area linking them. Otherwise known as "intersecting managerial jurisprudence," it
forms a unifying theme for the corporate counsel's total learning.
Some current advances in behavior and policy sciences affect the counsel's role. For
that matter, the corporate lawyer reviews the globalization process, including the
resulting strategic repositioning that the firms he provides counsel for are required to
make, and the need to think about a corporation's; strategy at multiple levels. The
salience of the nation-state is being reduced as firms deal both with global
multinational entities and simultaneously with sub-national governmental units. Firms
increasingly collaborate not only with public entities but with each other often with
those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a new role
as a stakeholder in some cases participating in the organization and operations of
governance through participation on boards and other decision-making roles. Often
these new patterns develop alongside existing legal institutions and laws are
perceived as barriers. These trends are complicated as corporations organize for
global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental policies toward
the promotion and management of technology. New collaborative arrangements for
promoting specific technologies or competitiveness more generally require
approaches from industry that differ from older, more adversarial relationships and
traditional forms of seeking to influence governmental policies. And there are lessons
to be learned from other countries. In Europe, Esprit, Eureka and Race are examples
of collaborative efforts between governmental and business Japan's MITI is world
famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel
comprises a distinct group within the managerial structure of all kinds of
organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the groupcontext interaction such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting team achievements within
the organization. In general, such external activities are better predictors of team
performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis
the managerial mettle of corporations are challenged. Current research is seeking
ways both to anticipate effective managerial procedures and to understand
relationships of financial liability and insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:
First System Dynamics. The field of systems dynamics has been found an effective
tool for new managerial thinking regarding both planning and pressing immediate
problems. An understanding of the role of feedback loops, inventory levels, and rates

of flow, enable users to simulate all sorts of systematic problems physical,


economic, managerial, social, and psychological. New programming techniques now
make the system dynamics principles more accessible to managers including
corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions involving
complexity and uncertainty. In the context of a law department, it can be used to
appraise the settlement value of litigation, aid in negotiation settlement, and minimize
the cost and risk involved in managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be used
directly by parties and mediators in all lands of negotiations. All integrated set of such
tools provide coherent and effective negotiation support, including hands-on on
instruction in these techniques. A simulation case of an international joint venture
may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function, concern
three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that comprise a
major part of the general counsel's responsibilities. They differ from those of remedial
law. Preventive lawyering is concerned with minimizing the risks of legal trouble and
maximizing legal rights for such legal entities at that time when transactional or
similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken those
activities of the firm to which legal consequences attach. It needs to be directly
supportive of this nation's evolving economic and organizational fabric as firms
change to stay competitive in a global, interdependent environment. The practice and
theory of "law" is not adequate today to facilitate the relationships needed in trying to
make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The general counsel
has emerged in the last decade as one of the most vibrant subsets of the legal
profession. The corporate counsel hear responsibility for key aspects of the firm's
strategic issues, including structuring its global operations, managing improved
relationships with an increasingly diversified body of employees, managing expanded
liability exposure, creating new and varied interactions with public decision-makers,
coping internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is not enough
to make one a good general corporate counsel nor to give him a full sense of how
the legal system shapes corporate activities. And even if the corporate lawyer's aim
is not the understand all of the law's effects on corporate activities, he must, at the
very least, also gain a working knowledge of the management issues if only to be
able to grasp not only the basic legal "constitution' or makeup of the modem
corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a
passing knowledge of financial law affecting each aspect of their work. Yet, many
would admit to ignorance of vast tracts of the financial law territory. What transpires
next is a dilemma of professional security: Will the lawyer admit ignorance and risk
opprobrium?; or will he feign understanding and risk exposure? (Business Star,
"Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of
Chairman of the COMELEC in a letter received by the Secretariat of the Commission on
Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does
not possess the required qualification of having been engaged in the practice of law for at least ten
years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as
Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he
assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of Monsod's
nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition
praying that said confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of
1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the
Philippines since its inception in 1972-73. He has also been paying his professional license fees as
lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in
the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as
an operations officer for about two years in Costa Rica and Panama, which involved getting
acquainted with the laws of member-countries negotiating loans and coordinating legal, economic,
and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco
Group, served as chief executive officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to various companies as a legal and
economic consultant or chief executive officer. As former Secretary-General (1986) and National
Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He
appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy,
Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's
Conference for Human Development, has worked with the under privileged sectors, such as the
farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the
agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal
knowledge as a member of the Davide Commission, a quast judicial body, which conducted
numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and
Chairman of its Committee on Accountability of Public Officers, for which he was cited by the
President of the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to
reconcile government functions with individual freedoms and public accountability and the party-list
system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is
adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts) who comprise the
members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines,
Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down the
law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1) business
terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5)
events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring program.
For aside from performing the tasks of legislative drafting and legal advising, they
score national development policies as key factors in maintaining their countries'
sovereignty. (Condensed from the work paper, entitled "Wanted: Development
Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal
adviser of the United States Agency for International Development, during the
Session on Law for the Development of Nations at the Abidjan World Conference in
Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31,
1973). ( Emphasis supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in legislation and
agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work
with an international business specialist or an economist in the formulation of a
model loan agreement. Debt restructuring contract agreements contain such a
mixture of technical language that they should be carefully drafted and signed only
with the advise of competent counsel in conjunction with the guidance of adequate
technical support personnel. (See International Law Aspects of the Philippine
External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p.
321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set of
terms and conditions which determines the contractual remedies for a failure to
perform one or more elements of the contract. A good agreement must not only
define the responsibilities of both parties, but must also state the recourse open to
either party when the other fails to discharge an obligation. For a compleat debt
restructuring represents a devotion to that principle which in the ultimate analysis
issine qua non for foreign loan agreements-an adherence to the rule of law in
domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver
Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but
where they are, men learn that bustle and bush are not the equal of quiet genius and
serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third
and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern
concept of law practice, and taking into consideration the liberal construction intended by the
framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyermanager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator
of both the rich and the poor verily more than satisfy the constitutional requirement that he has
been engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be performed by the
officer in which it is vested according to his best lights, the only condition being that
the appointee should possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified
who should have been preferred. This is a political question involving considerations
of wisdom which only the appointing authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA
744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the other
legal requirements are satisfied, the Commission has no alternative but to attest to
the appointment in accordance with the Civil Service Law. The Commission has no
authority to revoke an appointment on the ground that another person is more
qualified for a particular position. It also has no authority to direct the appointment of
a substitute of its choice. To do so would be an encroachment on the discretion
vested upon the appointing authority. An appointment is essentially within the
discretionary power of whomsoever it is vested, subject to the only condition that the
appointee should possess the qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1)
nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in
the Philippines, upon submission by the Commission on Appointments of its certificate of
confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking,
posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on
Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of Monsod as
Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of
the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of
the practice of law is the traditional or stereotyped notion of law practice, as
distinguished from the modern concept of the practice of law, which modern
connotation is exactly what was intended by the eminent framers of the 1987
Constitution. Moreover, Justice Padilla's definition would require generally a habitual
law practice, perhaps practised two or three times a week and would outlaw say, law
practice once or twice a year for ten consecutive years. Clearly, this is far from the
constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I
made use of a definition of law practice which really means nothing because the definition says that
law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but
only by way of sarcasm as evident from my statement that the definition of law practice by
"traditional areas of law practice is essentially tautologous" or defining a phrase by means of the
phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations, most
individuals, in making use of the law, or in advising others on what the law means, are actually
practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a
lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is
different from the acts of persons practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt.
For one thing, how can an action or petition be brought against the President? And even assuming
that he is indeed disqualified, how can the action be entertained since he is the incumbent
President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on Monsod's
confirmation, implicitly determined that he possessed the necessary qualifications as required by
law. The judgment rendered by the Commission in the exercise of such an acknowledged power is
beyond judicial interference except only upon a clear showing of a grave abuse of discretion
amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such
grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment.
In the instant case, there is no occasion for the exercise of the Court's corrective power, since no
abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction
and would warrant the issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President, may the
Supreme Court reverse the Commission, and thus in effect confirm the appointment?
Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress)
decides to confirma Presidential nominee, it would be incredible that the U.S.
Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah
(who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning
white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon
hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming
with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied:
"Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying
on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.

Separate Opinions

NARVASA, J., concurring:


I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does
not appear to me that there has been an adequate showing that the challenged determination by the

Commission on Appointments-that the appointment of respondent Monsod as Chairman of the


Commission on Elections should, on the basis of his stated qualifications and after due assessment
thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and
consequently merits nullification by this Court in accordance with the second paragraph of Section 1,
Article VIII of the Constitution. I therefore vote to DENY the petition.

PADILLA, J., dissenting:


The records of this case will show that when the Court first deliberated on the Petition at bar, I voted
not only to require the respondents to comment on the Petition, but I was the sole vote for the
issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position
of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office.
My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all
parties concerned were the Court to finally decide for respondent Monsod's disqualification.
Moreover, a reading of the Petition then in relation to established jurisprudence already
showed prima facie that respondent Monsod did not possess the needed qualification, that is, he
had not engaged in the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately,
the core issue to be resolved in this petition is the proper construal of the constitutional provision
requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been
engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987
Constitution). Questions involving the construction of constitutional provisions are best left to judicial
resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial
department is thrown the solemn and inescapable obligation of interpreting the Constitution and
defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these
are that he must have been "engaged in the practice of law for at least ten (10) years." It is the
bounden duty of this Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual
performance or application of knowledge as distinguished from mere possession of knowledge; it
connotes an active, habitual,repeated or customary action. 1 To "practice" law, or any profession for
that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing
aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a
clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is
employed as a business executive or a corporate manager, other than as head or attorney of a Legal
Department of a corporation or a governmental agency, cannot be said to be in the practice of law.

As aptly held by this Court in the case of People vs. Villanueva: 2


Practice is more than an isolated appearance for it consists in frequent or customary
actions, a succession of acts of the same kind. In other words, it is frequent habitual
exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of
law to fall within the prohibition of statute has been interpreted as customarily or
habitually holding one's self out to the public as a lawyer and demanding payment for
such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis
supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it
prepared, enumerated several factors determinative of whether a particular activity constitutes
"practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding
one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing
State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular
announcing the establishment of a law office for the general practice of law (U.S. v.
Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a
notary public, and files a manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People v. De Luna, 102 Phil.
968).
Practice is more than an isolated appearance for it consists in frequent or customary
action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be
in the active and continued practice of the legal profession and that his professional
services are available to the public for compensation, as a service of his livelihood or
in consideration of his said services. (People v. Villanueva, supra). Hence, charging
for services such as preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and
Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176
N.B. 901) and, one who renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806
citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is
expected, all advice to clients and all action taken for them in matters connected with
the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356359)
3. Application of law legal principle practice or procedure which calls for legal
knowledge, training and experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the
existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity
which requires knowledge of law but involves no attorney-client relationship, such as
teaching law or writing law books or articles, he cannot be said to be engaged in the
practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years
at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT
LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not
do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify
his past endeavors as "practice of law." To become engaged in the practice of law, there must be
a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4
Essentially, the word private practice of law implies that one must have presented
himself to be in theactive and continued practice of the legal profession and that his
professional services are available to the public for a compensation, as a source of
his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not
qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at
least ten (10) years prior to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same.
There are certain points on which I must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent
simply because his nomination has been confirmed by the Commission on Appointments. In my
view, this is not a political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the discretion of that body.
Even if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing
authority tochoose between two claimants to the same office who both possessed the required
qualifications. It was that kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the
required qualifications, I see no reason why we cannot disqualified an appointee simply because he
has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the enfranchised
citizenry. The reason is that what we would be examining is not the wisdom of his election but
whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have been
too sweeping in its definition of the phrase "practice of law" as to render the qualification practically
toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable
feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as
his activities involve the application of some law, however peripherally. The stock broker and the
insurance adjuster and the realtor could come under the definition as they deal with or give advice
on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That covers
every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A.
Considering the ramifications of the modern society, there is hardly any activity that is not affected by
some law or government regulation the businessman must know about and observe. In fact, again
going by the definition, a lawyer does not even have to be part of a business concern to be
considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or
consults a doctor as these acts involve his knowledge and application of the laws regulating such
transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be
deemed engaged in the practice of law because he must obey the Public Service Act and the rules
and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any
acts ... in or out of court, commonly understood to be the practice of law," which tells us absolutely
nothing. The decision goes on to say that "because lawyers perform almost every function known in
the commercial and governmental realm, such a definition would obviously be too global to be
workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged
in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough
that his activities are incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived from teaching ballroom
dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has
been engaged in the practice of law for ten years as required by the Constitution. It is conceded that
he has been engaged in business and finance, in which areas he has distinguished himself, but as
an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied
the various positions listed in his resume by virtue of his experience and prestige as a businessman
and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued
that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in
the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and

priests) and was a member of the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless
eminently qualified for many other positions worthy of his abundant talents but not as Chairman of
the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for
public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not
the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the
practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing
his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the
result because there was no error so gross as to amount to grave abuse of discretion; one of official
leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the
deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a
constitutional Commission on Appointments whose duty is precisely to look into the qualifications of
persons appointed to high office. Even if the Commission errs, we have no power to set aside error.
We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief
that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in
management, educational background, experience in international banking and finance, and instant
recognition by the public. His integrity and competence are not questioned by the petitioner. What is
before us is compliance with a specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never
engaged in the practice of law for even one year. He is a member of the bar but to say that he has
practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he
has not engaged in an activity where membership in the bar is a requirement I fail to see how he can
claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we
have if there main occupation is selling real estate, managing a business corporation, serving in factfinding committee, working in media, or operating a farm with no active involvement in the law,
whether in Government or private practice, except that in one joyful moment in the distant past, they
happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The
deliberate choice of words shows that the practice envisioned is active and regular, not isolated,
occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an
activity for ten years requires committed participation in something which is the result of one's

decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or
pledged to carry it out with intent and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least ten
years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year
period after passing the bar examinations when he worked in his father's law firm. Even then his law
practice must have been extremely limited because he was also working for M.A. and Ph. D.
degrees in Economics at the University of Pennsylvania during that period. How could he practice
law in the United States while not a member of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in
1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations,
Latin American Department; Division Chief, South Asia and Middle East, International
Finance Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco
Securities Corporation, Philippine Petroleum Corporation, Philippine Electric
Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and
affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt
Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following
companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation

e. CBL Timber Corporation


Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has
given the lawenough attention or a certain degree of commitment and participation as would support
in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of
working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of
legal services, he was the oneadvice and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the
practice of law" with the use of legal knowledge in various fields of endeavor such as commerce,
industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman
accepts as having a familiar and customary well-defined meaning. Every resident of this country who
has reached the age of discernment has to know, follow, or apply the law at various times in his life.
Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay
captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And
yet, can these people honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not
satisfied with having been "a member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:


The practice of law involves not only appearance in court in connection with litigation
but also services rendered out of court, and it includes the giving of advice or the
rendering of any services requiring the use of legal skill or knowledge, such as
preparing a will, contract or other instrument, the legal effect of which, under the facts
and conditions involved, must be carefully determined.People ex rel. Chicago Bar
Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v.
People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what
constitutes the practice of law. "Practicing law" has been defined as "Practicing as an
attorney or counselor at law according to the laws and customs of our courts, is the
giving of advice or rendition of any sort of service by any person, firm or corporation
when the giving of such advice or rendition of such service requires the use of any
degree of legal knowledge or skill." Without adopting that definition, we referred to it
as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d
773, 776)
For one's actions to come within the purview of practice of law they should not only be activities
peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily,
to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was
asked whether or not he ever prepared contracts for the parties in real-estate
transactions where he was not the procuring agent. He answered: "Very seldom." In
answer to the question as to how many times he had prepared contracts for the
parties during the twenty-one years of his business, he said: "I have no Idea." When
asked if it would be more than half a dozen times his answer was I suppose. Asked if
he did not recall making the statement to several parties that he had prepared
contracts in a large number of instances, he answered: "I don't recall exactly what
was said." When asked if he did not remember saying that he had made a practice of
preparing deeds, mortgages and contracts and charging a fee to the parties therefor
in instances where he was not the broker in the deal, he answered: "Well, I don't
believe so, that is not a practice." Pressed further for an answer as to his practice in
preparing contracts and deeds for parties where he was not the broker, he finally
answered: "I have done about everything that is on the books as far as real estate is
concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a
lawful right to do any legal work in connection with real-estate transactions,
especially in drawing of real-estate contracts, deeds, mortgages, notes and the like.
There is no doubt but that he has engaged in these practices over the years and has
charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)

xxx xxx xxx


... An attorney, in the most general sense, is a person designated or employed by
another to act in his stead; an agent; more especially, one of a class of persons
authorized to appear and act for suitors or defendants in legal proceedings. Strictly,
these professional persons are attorneys at law, and non-professional agents are
properly styled "attorney's in fact;" but the single word is much used as meaning an
attorney at law. A person may be an attorney in facto for another, without being an
attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says
Webster, is an officer of a court of law, legally qualified to prosecute and defend
actions in such court on the retainerof clients. "The principal duties of an attorney are
(1) to be true to the court and to his client; (2) to manage the business of his client
with care, skill, and integrity; (3) to keep his client informed as to the state of his
business; (4) to keep his secrets confided to him as such. ... His rights are to be
justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive
verb "practice," as defined by Webster, means 'to do or perform frequently,
customarily, or habitually; to perform by a succession of acts, as, to practice
gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real
life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,'
etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts.
Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner,
127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and
demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required
component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's
self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v.
Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the
establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8
Phil. 146), or when one takes the oath of office as a lawyer before a notary public,
and files a manifestation with the Supreme Court informing it of his intention to
practice law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary
action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)."
(Rollo, p. 115)
xxx xxx xxx

While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do
not fall under the denomination of practice of law. Admission to the practice of law was not required
for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989
Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a
member may be likened to isolated transactions of foreign corporations in the Philippines which do
not categorize the foreign corporations as doing business in the Philippines. As in the practice of
law, doing business also should be active and continuous. Isolated business transactions or
occasional, incidental and casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional
Commission may possess the background, competence, integrity, and dedication, to qualify for such
high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in
prescribing the specific qualification of having engaged in the practice of law for at least ten (10)
years for the position of COMELEC Chairman has ordered that he may not be confirmed for that
office. The Constitution charges the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in
confirming the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent

Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does
not appear to me that there has been an adequate showing that the challenged determination by the
Commission on Appointments-that the appointment of respondent Monsod as Chairman of the
Commission on Elections should, on the basis of his stated qualifications and after due assessment
thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and
consequently merits nullification by this Court in accordance with the second paragraph of Section 1,
Article VIII of the Constitution. I therefore vote to DENY the petition.
Melencio-Herrera, J., concur.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the Petition at bar, I voted
not only to require the respondents to comment on the Petition, but I was the sole vote for the
issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position
of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office.
My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all

parties concerned were the Court to finally decide for respondent Monsod's disqualification.
Moreover, a reading of the Petition then in relation to established jurisprudence already
showed prima facie that respondent Monsod did not possess the needed qualification, that is, he
had not engaged in the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately,
the core issue to be resolved in this petition is the proper construal of the constitutional provision
requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been
engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987
Constitution). Questions involving the construction of constitutional provisions are best left to judicial
resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial
department is thrown the solemn and inescapable obligation of interpreting the Constitution and
defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these
are that he must have been "engaged in the practice of law for at least ten (10) years." It is the
bounden duty of this Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual
performance or application of knowledge as distinguished from mere possession of knowledge; it
connotes an active, habitual,repeated or customary action. 1 To "practice" law, or any profession for
that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing
aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a
clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is
employed as a business executive or a corporate manager, other than as head or attorney of a Legal
Department of a corporation or a governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it consists in frequent or customary
actions, a succession of acts of the same kind. In other words, it is frequent habitual
exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of
law to fall within the prohibition of statute has been interpreted as customarily or
habitually holding one's self out to the public as a lawyer and demanding payment for
such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis
supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it
prepared, enumerated several factors determinative of whether a particular activity constitutes
"practice of law." It states:

1. Habituality. The term "practice of law" implies customarily or habitually holding


one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing
State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular
announcing the establishment of a law office for the general practice of law (U.S. v.
Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a
notary public, and files a manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People v. De Luna, 102 Phil.
968).
Practice is more than an isolated appearance for it consists in frequent or customary
action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be
in the active and continued practice of the legal profession and that his professional
services are available to the public for compensation, as a service of his livelihood or
in consideration of his said services. (People v. Villanueva, supra). Hence, charging
for services such as preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and
Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176
N.B. 901) and, one who renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806
citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is
expected, all advice to clients and all action taken for them in matters connected with
the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356359)
3. Application of law legal principle practice or procedure which calls for legal
knowledge, training and experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the
existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity
which requires knowledge of law but involves no attorney-client relationship, such as
teaching law or writing law books or articles, he cannot be said to be engaged in the
practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years
at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT
LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not
do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify
his past endeavors as "practice of law." To become engaged in the practice of law, there must be
a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4
Essentially, the word private practice of law implies that one must have presented
himself to be in theactive and continued practice of the legal profession and that his
professional services are available to the public for a compensation, as a source of
his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not
qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at
least ten (10) years prior to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same.
There are certain points on which I must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent
simply because his nomination has been confirmed by the Commission on Appointments. In my
view, this is not a political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the discretion of that body.
Even if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing
authority tochoose between two claimants to the same office who both possessed the required
qualifications. It was that kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of the
required qualifications, I see no reason why we cannot disqualified an appointee simply because he
has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the enfranchised
citizenry. The reason is that what we would be examining is not the wisdom of his election but
whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have been
too sweeping in its definition of the phrase "practice of law" as to render the qualification practically
toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable
feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as
his activities involve the application of some law, however peripherally. The stock broker and the

insurance adjuster and the realtor could come under the definition as they deal with or give advice
on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That covers
every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A.
Considering the ramifications of the modern society, there is hardly any activity that is not affected by
some law or government regulation the businessman must know about and observe. In fact, again
going by the definition, a lawyer does not even have to be part of a business concern to be
considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or
consults a doctor as these acts involve his knowledge and application of the laws regulating such
transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be
deemed engaged in the practice of law because he must obey the Public Service Act and the rules
and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any
acts . . . in or out of court, commonly understood to be the practice of law," which tells us absolutely
nothing. The decision goes on to say that "because lawyers perform almost every function known in
the commercial and governmental realm, such a definition would obviously be too global to be
workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged
in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough
that his activities are incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived from teaching ballroom
dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has
been engaged in the practice of law for ten years as required by the Constitution. It is conceded that
he has been engaged in business and finance, in which areas he has distinguished himself, but as
an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied
the various positions listed in his resume by virtue of his experience and prestige as a businessman
and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued
that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in
the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and
priests) and was a member of the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless
eminently qualified for many other positions worthy of his abundant talents but not as Chairman of
the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for
public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not
the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the
practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing
his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the
result because there was no error so gross as to amount to grave abuse of discretion; one of official
leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the
deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a
constitutional Commission on Appointments whose duty is precisely to look into the qualifications of
persons appointed to high office. Even if the Commission errs, we have no power to set aside error.
We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief
that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in
management, educational background, experience in international banking and finance, and instant
recognition by the public. His integrity and competence are not questioned by the petitioner. What is
before us is compliance with a specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never
engaged in the practice of law for even one year. He is a member of the bar but to say that he has
practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he
has not engaged in an activity where membership in the bar is a requirement I fail to see how he can
claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we
have if there main occupation is selling real estate, managing a business corporation, serving in factfinding committee, working in media, or operating a farm with no active involvement in the law,
whether in Government or private practice, except that in one joyful moment in the distant past, they
happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The
deliberate choice of words shows that the practice envisioned is active and regular, not isolated,
occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an
activity for ten years requires committed participation in something which is the result of one's
decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or
pledged to carry it out with intent and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least ten
years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year
period after passing the bar examinations when he worked in his father's law firm. Even then his law
practice must have been extremely limited because he was also working for M.A. and Ph. D.
degrees in Economics at the University of Pennsylvania during that period. How could he practice
law in the United States while not a member of the Bar there?
The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in
1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations,
Latin American Department; Division Chief, South Asia and Middle East, International
Finance Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco
Securities Corporation, Philippine Petroleum Corporation, Philippine Electric
Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and
affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt
Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following
companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation

e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has
given the lawenough attention or a certain degree of commitment and participation as would support
in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of
working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of
legal services, he was the oneadvice and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the
practice of law" with the use of legal knowledge in various fields of endeavor such as commerce,
industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman
accepts as having a familiar and customary well-defined meaning. Every resident of this country who
has reached the age of discernment has to know, follow, or apply the law at various times in his life.
Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay
captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And
yet, can these people honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not
satisfied with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation
but also services rendered out of court, and it includes the giving of advice or the
rendering of any services requiring the use of legal skill or knowledge, such as
preparing a will, contract or other instrument, the legal effect of which, under the facts
and conditions involved, must be carefully determined.People ex rel. Chicago Bar
Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v.
People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what


constitutes the practice of law. "Practicing law" has been defined as "Practicing as an
attorney or counselor at law according to the laws and customs of our courts, is the
giving of advice or rendition of any sort of service by any person, firm or corporation
when the giving of such advice or rendition of such service requires the use of any
degree of legal knowledge or skill." Without adopting that definition, we referred to it
as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d
773, 776)
For one's actions to come within the purview of practice of law they should not only be activities
peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily,
to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was
asked whether or not he ever prepared contracts for the parties in real-estate
transactions where he was not the procuring agent. He answered: "Very seldom." In
answer to the question as to how many times he had prepared contracts for the
parties during the twenty-one years of his business, he said: "I have no Idea." When
asked if it would be more than half a dozen times his answer was I suppose. Asked if
he did not recall making the statement to several parties that he had prepared
contracts in a large number of instances, he answered: "I don't recall exactly what
was said." When asked if he did not remember saying that he had made a practice of
preparing deeds, mortgages and contracts and charging a fee to the parties therefor
in instances where he was not the broker in the deal, he answered: "Well, I don't
believe so, that is not a practice." Pressed further for an answer as to his practice in
preparing contracts and deeds for parties where he was not the broker, he finally
answered: "I have done about everything that is on the books as far as real estate is
concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a
lawful right to do any legal work in connection with real-estate transactions,
especially in drawing of real-estate contracts, deeds, mortgages, notes and the like.
There is no doubt but that he has engaged in these practices over the years and has
charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by
another to act in his stead; an agent; more especially, one of a class of persons
authorized to appear and act for suitors or defendants in legal proceedings. Strictly,
these professional persons are attorneys at law, and non-professional agents are
properly styled "attorney's in fact;" but the single word is much used as meaning an
attorney at law. A person may be an attorney in facto for another, without being an
attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says

Webster, is an officer of a court of law, legally qualified to prosecute and defend


actions in such court on the retainerof clients. "The principal duties of an attorney are
(1) to be true to the court and to his client; (2) to manage the business of his client
with care, skill, and integrity; (3) to keep his client informed as to the state of his
business; (4) to keep his secrets confided to him as such. ... His rights are to be
justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive
verb "practice," as defined by Webster, means 'to do or perform frequently,
customarily, or habitually; to perform by a succession of acts, as, to practice
gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real
life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,'
etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts.
Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner,
127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and
demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required
component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's
self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v.
Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the
establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8
Phil. 146), or when one takes the oath of office as a lawyer before a notary public,
and files a manifestation with the Supreme Court informing it of his intention to
practice law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary
action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)."
(Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do
not fall under the denomination of practice of law. Admission to the practice of law was not required
for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989
Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a
member may be likened to isolated transactions of foreign corporations in the Philippines which do
not categorize the foreign corporations as doing business in the Philippines. As in the practice of
law, doing business also should be active and continuous. Isolated business transactions or

occasional, incidental and casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional
Commission may possess the background, competence, integrity, and dedication, to qualify for such
high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in
prescribing the specific qualification of having engaged in the practice of law for at least ten (10)
years for the position of COMELEC Chairman has ordered that he may not be confirmed for that
office. The Constitution charges the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in
confirming the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 177721

July 3, 2007

KILOSBAYAN FOUNDATION AND BANTAY KATARUNGAN FOUNDATION, petitioners,


vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA; SANDIGANBAYAN JUSTICE GREGORY S.
ONG,respondents.
DECISION
AZCUNA, J.:
Filed on May 23, 2007 was this petition for certiorari under Rule 65 of the Rules of Court.
Petitioners are peoples and/or non-governmental organizations engaged in public and civic causes
aimed at protecting the peoples rights to self-governance and justice.
Respondent Executive Secretary is the head of the Office of the President and is in charge of
releasing presidential appointments including those of Supreme Court Justices.
Respondent Gregory S. Ong is allegedly the party whose appointment would fill up the vacancy in
this Court.
Petitioners allege that:
On May 16, 2007, respondent Executive Secretary, in representation of the Office of the President,
announced an appointment in favor of respondent Gregory S. Ong as Associate Justice of the
Supreme Court to fill up the vacancy created by the retirement on April 28, 2007 of Associate Justice

Romeo J. Callejo, Sr. The appointment was reported the following day, May 17, 2007, by the major
daily publications.
On May 18, 2007, the major daily publications reported that the appointment was "recalled" or "held
in abeyance" by Malacaang in view of the question relating to the citizenship of respondent Gregory
S. Ong. There is no indication whatever that the appointment has been cancelled by the Office of the
President.
On May 19, 2007, the major daily publications reported that respondent Executive Secretary stated
that the appointment is "still there except that the validation of the issue is being done by the Judicial
and Bar Council (JBC)."
Petitioners contend that the appointment extended to respondent Ong through respondent Executive
Secretary is patently unconstitutional, arbitrary, whimsical and issued with grave abuse of discretion
amounting to lack of jurisdiction.
Petitioners claim that respondent Ong is a Chinese citizen, that this fact is plain and incontestable,
and that his own birth certificate indicates his Chinese citizenship. Petitioners attached a copy of
said birth certificate as Annex "H" to the petition. The birth certificate, petitioners add, reveals that at
the time of respondent Ongs birth on May 25, 1953, his father was Chinese and his mother was also
Chinese.
Petitioners invoke the Constitution:
Section 7 (1) of Article VIII of the 1987 Constitution provides that "No person shall be
appointed Member of the Supreme Court or any lower collegiate court unless he is a naturalborn citizen of the Philippines." Sec. 2 of Art. IV defines "natural-born citizens as those who
are citizens of the Philippines from birth without having to perform any act to acquire or
perfect their Philippine Citizenship."1
Petitioners maintain that even if it were granted that eleven years after respondent Ongs birth his
father was finally granted Filipino citizenship by naturalization, that, by itself, would not make
respondent Ong a natural-born Filipino citizen.
Petitioners further argue that respondent Ongs birth certificate speaks for itself and it states his
nationality as "Chinese" at birth. They invoke the Civil Code:
Article 410 of the Civil Code provides that "[t]he books making up the civil register and all documents
relating thereto x x x shall be prima facie evidence of the facts therein contained." Therefore, the
entry in Ongs birth certificate indicating his nationality as Chinese is prima facie evidence of the fact
that Ongs citizenship at birth is Chinese.
Article 412 of the Civil Code also provides that "[N]o entry in a civil register shall be changed
or corrected without a judicial order." Thus, as long as Ongs birth certificate is not changed
by a judicial order, the Judicial & Bar Council, as well as the whole world, is bound by what is
stated in his birth certificate.2
This birth certificate, petitioners assert, prevails over respondent Ongs new Identification
Certificate issued by the Bureau of Immigration dated October 16, 1996, stating that he is a
natural-born Filipino and over the opinion of then Secretary of Justice Teofisto Guingona that
he is a natural-born Filipino. They maintain that the Department of Justice (DOJ) does not

have the power or authority to alter entries in a birth certificate; that respondent Ongs old
Identification Certificate did not declare that he is a natural-born Filipino; and that respondent
Ongs remedy is an action to correct his citizenship as it appears in his birth certificate.
Petitioners thereupon pray that a writ of certiorari be issued annulling the appointment issued to
respondent Ong as Associate Justice of this Court.
Subsequently, on May 24, 2007, petitioners filed an Urgent Motion for the Issuance of a Temporary
Restraining Order (TRO), praying that a TRO be issued, in accordance with the Rules of Court, to
prevent and restrain respondent Executive Secretary from releasing the appointment of respondent
Ong, and to prevent and restrain respondent Ong from assuming the office and discharging the
functions of Associate Justice of this Court.
The Court required respondents to Comment on the petition.
Respondent Executive Secretary accordingly filed his Comment, essentially stating that the
appointment of respondent Ong as Associate Justice of this Court on May 16, 2007 was made by
the President pursuant to the powers vested in her by Article VIII, Section 9 of the Constitution, thus:
SEC. 9. The Members of the Supreme Court and Judges of lower courts shall be appointed
by the President from a list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments need no confirmation.
Respondent Executive Secretary added that the President appointed respondent Ong from among
the list of nominees who were duly screened by and bore the imprimatur of the JBC created under
Article VIII, Section 8 of the Constitution. Said respondent further stated: "The appointment,
however, was not released, but instead, referred to the JBC for validation of respondent Ongs
citizenship."3 To date, however, the JBC has not received the referral.
Supporting the Presidents action and respondent Ongs qualifications, respondent Executive
Secretary submits that:
1. The President did not gravely abuse her discretion as she appointed a person, duly
nominated by the JBC, which passed upon the appointees qualifications.
2. Justice Gregory S. Ong is a natural-born citizen as determined by the Bureau of
Immigration and affirmed by the Department of Justice, which have the authority and
jurisdiction to make determination on matters of citizenship.
3. Undisputed evidence disclosed that respondent Ong is a natural-born citizen.
4. Petitioners are not entitled to a temporary restraining order.4
Respondent Ong submitted his Comment with Opposition, maintaining that he is a natural-born
Filipino citizen; that petitioners have no standing to file the present suit; and that the issue raised
ought to be addressed to the JBC as the Constitutional body mandated to review the qualifications of
those it recommends to judicial posts. Furthermore, the petitioners in his view failed to include the
President who is an indispensable party as the one who extended the appointment.
As to his citizenship, respondent Ong traces his ancestral lines to one Maria Santos of Malolos,
Bulacan, born on November 25, 1881, who was allegedly a Filipino citizen5 who married Chan Kin, a

Chinese citizen; that these two had a son, Juan Santos; that in 1906 Chan Kin died in China, as a
result of which Maria Santos reverted to her Filipino citizenship; that at that time Juan Santos was a
minor; that Juan Santos thereby also became a Filipino citizen;6 that respondent Ongs mother, Dy
Guiok Santos, is the daughter of the spouses Juan Santos and Sy Siok Hian, a Chinese citizen, who
were married in 1927; that, therefore, respondents mother was a Filipino citizen at birth; that Dy
Guiok Santos later married a Chinese citizen, Eugenio Ong Han Seng, thereby becoming a Chinese
citizen; that when respondent Ong was eleven years old his father, Eugenio Ong Han Seng, was
naturalized, and as a result he, his brothers and sisters, and his mother were included in the
naturalization.
Respondent Ong subsequently obtained from the Bureau of Immigration and the DOJ a certification
and an identification that he is a natural-born Filipino citizen under Article IV, Sections 1 and 2 of the
Constitution, since his mother was a Filipino citizen when he was born.
Summarizing, his arguments are as follows:
I. PETITIONERS LACK OF STANDING AND INABILITY TO IMPLEAD AN INDISPENSABLE
PARTY WHOSE OFFICIAL ACTION IS THE VERY ACT SOUGHT TO BE ANNULLED
CONSTITUTE INSUPERABLE LEGAL OBSTACLES TO THE EXERCISE OF JUDICIAL
POWER AND SHOULD PREVENT THIS CASE FROM PROCEEDING FURTHER FOR
DETERMINATION ON THE MERITS BY THIS HONORABLE COURT.
II. RESPONDENT ONG IS, IN TRUTH AND IN FACT, A NATURAL-BORN CITIZEN OF THE
PHILIPPINES, CONSIDERING THAT:
A. DY GUIOK SANTOS WAS A FILIPINO CITIZEN AT THE TIME OF HER
MARRIAGE TO EUGENIO; and
B. HAVING BEEN BORN BEFORE JANUARY 17, 1973 OF A FILIPINO MOTHER
AND WHO ELECTED FILIPINO CITIZENSHIP UPON REACHING THE AGE OF
MAJORITY, RESPONDENT ONG MEETS THE REQUIREMENTS UNDER ARTICLE
IV, SECTIONS 1 AND 2 OF THE 1987 CONSTITUTION.
III. THE BIRTH CERTIFICATE OF RESPONDENT ONG AS PRESENTED BY
PETITIONERS CAN, IN NO WAY, WITHOUT MORE, ESTABLISH WITH FINALITY THAT HE
IS A CHINESE NATIONAL, OR DISPROVE CONCLUSIVELY THAT HE IS, IN FACT, A
NATURAL-BORN FILIPINO, DESCENDED FROM "INDIOS."
IV. IT IS NOT NECESSARY FOR RESPONDENT ONG TO RESORT TO JUDICIAL ACTION
UNDER RULE 108 OF THE RULES OF COURT FOR HIM TO BE ABLE TO CLAIM AND
ENJOY HIS RIGHTFUL STATUS AS A NATURAL-BORN FILIPINO.
V. THE BUREAU OF IMMIGRATION HAS PREEMPTIVE LEGAL AUTHORITY OR
PRIMARY ADMINISTRATIVE JURIDICTION TO MAKE A DETERMINATION AS REGARDS
THE CITIZENSHIP OF RESPONDENT ONG, AND UPON SUBSEQUENT CONFIRMATION
BY THE SECRETARY OF JUSTICE AS REQUIRED BY THE RULES, ISSUE A
DECLARATION (I.E., IDENTIFICATION CERTIFICATE NO. 113878) RECOGNIZING THAT
RESPONDENT ONG IS A NATURAL-BORN FILIPINO, THEREBY RENDERING
NONEXISTENT ANY CONTITUTIONAL IMPEDIMENT FOR HIM TO ASSUME THE
POSITION OF ASSOCIATE JUSTICE OF THE SUPREME COURT.7

Petitioners, in turn, filed a Consolidated Reply, in which they asserted their standing to file this suit
on the strength of previous decisions of this Court, e.g., Kilosbayan, Incorporated v.
Guingona8 and Kilosbayan, Incorporated v. Morato,9 on the ground that the case is one of
transcendental importance. They claim that the Presidents appointment of respondent Ong as
Supreme Court Justice violates the Constitution and is, therefore, attended with grave abuse of
discretion amounting to lack or excess of jurisdiction. Finally, they reiterate that respondent Ongs
birth certificate, unless corrected by judicial order in non-summary proceedings for the purpose, is
binding on all and is prima facie evidence of what it states, namely, that respondent Ong is a
Chinese citizen. The alleged naturalization of his father when he was a minor would not make him a
natural-born Filipino citizen.
The petition has merit.
First, as to standing. Petitioners have standing to file the suit simply as peoples organizations and
taxpayers since the matter involves an issue of utmost and far-reaching Constitutional importance,
namely, the qualification nay, the citizenship of a person to be appointed a member of this Court.
Standing has been accorded and recognized in similar instances.10
Second, as to having to implead the President as an alleged necessary party. This is not necessary
since the suit impleads the Executive Secretary who is the alter ego of the President and he has in
fact spoken for her in his Comment. Furthermore, the suit does not seek to stop the President from
extending the appointment but only the Executive Secretary from releasing it and respondent Ong
from accepting the same.
Third, as to the proper forum for litigating the issue of respondent Ongs qualification for memberhip
of this Court. This case is a matter of primordial importance involving compliance with a
Constitutional mandate. As the body tasked with the determination of the merits of conflicting claims
under the Constitution,11 the Court is the proper forum for resolving the issue, even as the JBC has
the initial competence to do so.
Fourth, as to the principal issue of the case is respondent Ong a natural-born Filipino citizen?
On this point, the Court takes judicial notice of the records of respondent Ongs petition to be
admitted to the Philippine bar.
In his petition to be admitted to the Philippine bar, docketed as B.E. No. 1398-N filed on September
14, 1979, under O.R. No. 8131205 of that date, respondent Ong alleged that he is qualified to be
admitted to the Philippine bar because, among others, he is a Filipino citizen; and that he is a
Filipino citizen because his father, Eugenio Ong Han Seng, a Chinese citizen, was naturalized in
1964 when he, respondent Ong, was a minor of eleven years and thus he, too, thereby became a
Filipino citizen. As part of his evidence, in support of his petition, be submitted his birth certificate
and the naturalization papers of his father. His birth certificate12 states that he was a Chinese citizen
at birth and that his mother, Dy Guiok Santos, was a Chinese citizen and his father, Eugenio Ong
Han Seng, was also a Chinese citizen.
Specifically, the following appears in the records:
PETITION
COMES now the undersigned petitioner and to this Honorable Court respectfully states:

1. That he is single/married/widower/widow, Filipino citizen and 26 years of age, having been


born on May 25, 1953, at SAN JUAN RIZAL, to spouses Eugenio Ong Han Seng and Dy
Guiok Santos who are citizens of the Philippines, as evidenced by the attached copy of his
birth certificate marked as Annex A (if born outside of wedlock, state so; or if Filipino citizen
other than natural born, state how and when citizenship was acquired and attach the
necessary proofs: By Nat. Case #584 of Eugenio Ong Han Seng (Father) See Attached
documents Annex B, B-1, B-2, B-3, B-4.
xxx
V E R I F I C AT I O N
Republic of the Philippines )
City of Manila ) S.S.
I, GREGORY SANTOS ONG, after being sworn, depose and state: that I am the petitioner in
the foregoing petition; that the same was prepared by me and/or at my instance and that the
allegations contained therein are true to my knowledge.
(Sgd.) GREGORY SANTOS ONG
Affiant
SUBSCRIBED AND SWORN to before me this 28th day of August, 1979, City of Manila,
Philippines, affiant exhibiting his/her Residence Certificate No. A-___________, issued at
________________, on __________________, 19__.

(Sgd.)
Notary Public
Until December 31, 1979
PTR No. 3114917
January 19, 1979, Pasig, MM

Doc. No. 98;


Page No. 10;
Book No. VIII;
Series of 1979.13
In fact, Emilio R. Rebueno, Deputy Clerk of Court and Bar Confidant, wrote respondent Ong a letter
dated October 3, 1979 stating that in connection with his Petition for Admission to the 1979 Bar
Examinations, he has to submit:
1) A certified clear copy of his Birth Certificate; and
2) A certification of non-appeal re his citizenship from the Office of the Solicitor General.
Respondent Ong complied with these requirements.

It was on the basis of these allegations under oath and the submitted evidence of naturalization that
this Court allowed respondent Ong to take the oath as a lawyer.
It is clear, therefore, that from the records of this Court, respondent Ong is a naturalized Filipino
citizen. The alleged subsequent recognition of his natural-born status by the Bureau of Immigration
and the DOJ cannot amend the final decision of the trial court stating that respondent Ong and his
mother were naturalized along with his father.
Furthermore, as petitioners correctly submit, no substantial change or correction in an entry in a civil
register can be made without a judicial order, and, under the law, a change in citizenship status is a
substantial change. In Labayo-Rowe v. Republic,14 this Court held that:
Changes which affect the civil status or citizenship of a party are substantial in character and
should be threshed out in a proper action depending upon the nature of the issues in
controversy, and wherein all the parties who may be affected by the entries are notified or
represented and evidence is submitted to prove the allegations of the complaint, and proof to
the contrary admitted.15
Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct
clerical or typographical errors in a birth certificate cannot apply to a change in nationality.
Substantial corrections to the nationality or citizenship of persons recorded in the civil registry
should, therefore, be effected through a petition filed in court under Rule 108 of the Rules of Court. 16
The series of events and long string of alleged changes in the nationalities of respondent Ongs
ancestors, by various births, marriages and deaths, all entail factual assertions that need to be
threshed out in proper judicial proceedings so as to correct the existing records on his birth and
citizenship. The chain of evidence would have to show that Dy Guiok Santos, respondent Ongs
mother, was a Filipino citizen, contrary to what still appears in the records of this Court. Respondent
Ong has the burden of proving in court his alleged ancestral tree as well as his citizenship under the
time-line of three Constitutions.17 Until this is done, respondent Ong cannot accept an appointment to
this Court as that would be a violation of the Constitution. For this reason, he can be prevented by
injunction from doing so.
WHEREFORE, the petition is GRANTED as one of injunction directed against respondent Gregory
S. Ong, who is hereby ENJOINED from accepting an appointment to the position of Associate
Justice of the Supreme Court or assuming the position and discharging the functions of that office,
until he shall have successfully completed all necessary steps, through the appropriate adversarial
proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his
birth and citizenship.
This Decision is FINAL and IMMEDIATELY EXECUTORY.
No costs.
SO ORDERED.
Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, CarpioMorales, Tinga, Chico-Nazario, Garcia, Velasco, Jr,, JJ., concur.
Sandoval-Gutierrez,J., on leave.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 179895

December 18, 2008

FERDINAND S. TOPACIO, petitioner,


vs.
ASSOCIATE JUSTICE OF THE SANDIGANBAYAN GREGORY SANTOS ONG and THE OFFICE
OF THE SOLICITOR GENERAL, respondents.
DECISION
CARPIO MORALES, J.:
Ferdinand Topacio (petitioner) via the present petition for certiorari and prohibition seeks, in the
main, to prevent Justice Gregory Ong (Ong) from further exercising the powers, duties and
responsibilities of a Sandiganbayan Associate Justice.
It will be recalled that in Kilosbayan Foundation v. Ermita,1 the Court, by Decision of July 3, 2007,
enjoined Ong "from accepting an appointment to the position of Associate Justice of the Supreme
Court or assuming the position and discharging the functions of that office, until he shall have
successfully completed all necessary steps, through the appropriate adversarial proceedings in
court, to show that he is a natural-born Filipino citizen and correct the records of his birth and
citizenship."2
On July 9, 2007, Ong immediately filed with the Regional Trial Court (RTC) of Pasig City a Petition
for the "amendment/ correction/ supplementation or annotation of an entry in [his] Certificate of
Birth," docketed as S.P. Proc No. 11767-SJ, "Gregory Santos Ong v. The Civil Registrar of San
Juan, Metro Manila, et al."3
Meanwhile, petitioner, by verified Letter-Request/Complaint4 of September 5, 2007, implored
respondent Office of the Solicitor General (OSG) to initiate post-haste a quo warranto proceeding
against Ong in the latters capacity as an incumbent Associate Justice of the Sandiganbayan.
Invoking paragraph 1, Section 7, Article VIII of the Constitution 5 in conjunction with the Courts
Decision in Kilosbayan Foundation v. Ermita,6 petitioner points out that natural-born citizenship is
also a qualification for appointment as member of the Sandiganbayan and that Ong has failed to
meet the citizenship requirement from the time of his appointment as such in October 1998.
The OSG, by letter of September 25, 2007, informed petitioner that it "cannot favorably act on [his]
request for the filing of a quo warranto petition until the [RTC] case shall have been terminated with
finality."7 Petitioner assails this position of the OSG as being tainted with grave abuse of discretion,
aside from Ongs continuous discharge of judicial functions.
Hence, this petition, positing that:

IN OCTOBER OF 1998, RESPONDENT WAS NOT DULY-QUALIFIED UNDER THE FIRST


SENTENCE OF PARAGRAPH 1, SECTION 7, OF THE 1987 CONSTITUTION, TO BE
APPOINTED AN ASSOCIATE JUSTICE OF THE SANDIGANBAYAN, MERELY ON THE
STRENGTH OF AN IDENTIFICATION CERTIFICATE ISSUED BY THE BUREAU OF
IMMIGRATION AND A 1ST INDORSEMENT DATED 22 MAY 1997 ISSUED BY THE
SECRETARY OF JUSTICE, BECAUSE, AS OF OCTOBER 1998, RESPONDETS BIRTH
CERTIFICATE INDICATED THAT RESPONDENT IS A CHINESE CITIZEN AND BECAUSE,
AS OF OCTOBER 1998, THE RECORDS OF THIS HONORABLE COURT DECLARED
THAT RESPONDENT IS A NATURALIZED FILIPINO CITIZEN.8 (Underscoring supplied)
Petitioner thus contends that Ong should immediately desist from holding the position of Associate
Justice of the Sandiganbayan since he is disqualified on the basis of citizenship, whether gauged
from his birth certificate which indicates him to be a Chinese citizen or against his bar records
bearing out his status as a naturalized Filipino citizen, as declared in Kilosbayan Foundation v.
Ermita.
Ong, on the other hand, states that Kilosbayan Foundation v. Ermita did not annul or declare null his
appointment as Justice of the Supreme Court, but merely enjoined him from accepting his
appointment, and that there is no definitive pronouncement therein that he is not a natural-born
Filipino. He informs that he, nonetheless, voluntarily relinquished the appointment to the Supreme
Court out of judicial statesmanship.9
By Manifestation and Motion to Dismiss of January 3, 2008, Ong informs that the RTC, by Decision
of October 24, 2007, already granted his petition and recognized him as a natural-born citizen. The
Decision having, to him, become final,10he caused the corresponding annotation thereof on his
Certificate of Birth.11
Invoking the curative provisions of the 1987 Constitution, Ong explains that his status as a naturalborn citizen inheres from birth and the legal effect of such recognition retroacts to the time of his
birth.
Ong thus concludes that in view of the RTC decision, there is no more legal or factual basis for the
present petition, or at the very least this petition must await the final disposition of the RTC case
which to him involves a prejudicial issue.
The parties to the present petition have exchanged pleadings 12 that mirror the issues in the pending
petitions for certiorari in G.R. No. 180543, "Kilosbayan Foundation, et al. v. Leoncio M. Janolo, Jr., et
al," filed with this Court and in CA-G.R. SP No. 102318, "Ferdinand S. Topacio v. Leoncio M. Janolo,
Jr., et al.,"13 filed with the appellate court, both of which assail, inter alia, the RTC October 24, 2007
Decision.
First, on the objection concerning the verification of the petition.
The OSG alleges that the petition is defectively verified, being based on petitioners "personal
knowledge and belief and/or authentic records," and having been "acknowledged" before a notary
public who happens to be petitioners father, contrary to the Rules of Court 14 and the Rules on
Notarial Practice of 2004,15 respectively.

This technicality deserves scant consideration where the question at issue, as in this case, is one
purely of law and there is no need of delving into the veracity of the allegations in the petition, which
are not disputed at all by respondents.16
One factual allegation extant from the petition is the exchange of written communications between
petitioner and the OSG, the truthfulness of which the latter does not challenge. Moreover, petitioner
also verifies such correspondence on the basis of the thereto attached letters, the authenticity of
which he warranted in the same verification-affidavit. Other allegations in the petition are verifiable in
a similar fashion, while the rest are posed as citations of law.
The purpose of verification is simply to secure an assurance that the allegations of the petition or
complaint have been made in good faith; or are true and correct, not merely speculative. This
requirement is simply a condition affecting the form of pleadings, and non-compliance therewith
does not necessarily render it fatally defective. Indeed, verification is only a formal, not a
jurisdictional requirement.17
In the same vein, the Court brushes aside the defect, insofar as the petition is concerned, of a
notarial act performed by one who is disqualified by reason of consanguinity, without prejudice to
any administrative complaint that may be filed against the notary public.
Certiorari with respect to the OSG
On the issue of whether the OSG committed grave abuse of discretion in deferring the filing of a
petition for quo warranto, the Court rules in the negative.
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at
all in contemplation of law.18
The Court appreciates no abuse of discretion, much less, a grave one, on the part of the OSG in
deferring action on the filing of a quo warranto case until after the RTC case has been terminated
with finality. A decision is not deemed tainted with grave abuse of discretion simply because the
affected party disagrees with it.19
The Solicitor General is the counsel of the government, its agencies and instrumentalities, and its
officials or agents. In the discharge of its task, the Solicitor General must see to it that the best
interest of the government is upheld within the limits set by law.20
The pertinent rules of Rule 66 on quo warranto provide:
SECTION 1. Action by Government against individuals. An action for the usurpation of a
public office, position or franchise may be commenced by a verified petition brought in the
name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;

(b) A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without being
legally incorporated or without lawful authority so to act.
SEC. 2. When Solicitor General or public prosecutor must commence action. The Solicitor
General or a public prosecutor, when directed by the President of the Philippines, or when
upon complaint or otherwise he has good reason to believe that any case specified in the
preceding section can be established by proof, must commence such action.
SEC. 3. When Solicitor General or public prosecutor may commence action with permission
of court. The Solicitor General or a public prosecutor may, with the permission of the court
in which the action is to be commenced, bring such an action at the request and upon the
relation of another person; but in such case the officer bringing it may first require an
indemnity for the expenses and costs of the action in an amount approved by and to be
deposited in the court by the person at whose request and upon whose relation the same is
brought. (Italics and emphasis in the original)
In the exercise of sound discretion, the Solicitor General may suspend or turn down the institution of
an action forquo warranto where there are just and valid reasons.21 Thus, in Gonzales v.
Chavez,22 the Court ruled:
Like the Attorney-General of the United States who has absolute discretion in choosing
whether to prosecute or not to prosecute or to abandon a prosecution already started, our
own Solicitor General may even dismiss, abandon, discontinue or compromise suits either
with or without stipulation with the other party. Abandonment of a case, however, does not
mean that the Solicitor General may just drop it without any legal and valid reasons, for the
discretion given him is not unlimited. Its exercise must be, not only within the parameters get
by law but with the best interest of the State as the ultimate goal. 23
Upon receipt of a case certified to him, the Solicitor General exercises his discretion in the
management of the case. He may start the prosecution of the case by filing the appropriate action in
court or he may opt not to file the case at all. He may do everything within his legal authority but
always conformably with the national interest and the policy of the government on the matter at
hand.24
It appears that after studying the case, the Solicitor General saw the folly of re-litigating the same
issue of Ongs citizenship in the quo warranto case simultaneously with the RTC case, not to
mention the consequent risk of forum-shopping. In any event, the OSG did not totally write finis to
the issue as it merely advised petitioner to await the outcome of the RTC case.
Certiorari and Prohibition with respect to Ong
By petitioners admission, what is at issue is Ongs title to the office of Associate Justice of
Sandiganbayan.25 He claims to have been constrained to file the present petition after the OSG
refused to heed his request to institute a suit for quo warranto. Averring that Ong is disqualified to be
a member of any lower collegiate court, petitioner specifically prays that, after appropriate
proceedings, the Court

. . . issue the writs of certiorari and prohibition against Respondent Ong, ordering
Respondent Ong to cease and desist from further exercising the powers, duties, and
responsibilities of a Justice of the Sandiganbayan due to violation of the first sentence of
paragraph 1, Section 7, of the 1987 Constitution; . . . issue the writs of certiorari and
prohibition against Respondent Ong and declare that he was disqualified from being
appointed to the post of Associate Justice of the Sandiganbayan in October of 1998,
considering that, as of October of 1998, the birth certificate of Respondent Ong declared that
he is a Chinese citizen, while even the records of this Honorable Court, as of October of
1998, declared that Respondent Ong is a naturalized Filipino; x x x26
While denominated as a petition for certiorari and prohibition, the petition partakes of the nature of
a quo warrantoproceeding with respect to Ong, for it effectively seeks to declare null and void his
appointment as an Associate Justice of the Sandiganbayan for being unconstitutional. While the
petition professes to be one for certiorari and prohibition, petitioner even adverts to a "quo warranto"
aspect of the petition.27
Being a collateral attack on a public officers title, the present petition for certiorari and prohibition
must be dismissed.
The title to a public office may not be contested except directly, by quo warranto proceedings; and it
cannot be assailed collaterally,28 even through mandamus29 or a motion to annul or set aside
order.30 In Nacionalista Party v. De Vera,31 the Court ruled that prohibition does not lie to inquire into
the validity of the appointment of a public officer.
x x x [T]he writ of prohibition, even when directed against persons acting as judges or other
judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called upon
to perform any of the functions of the writ. If there is a court, judge or officer de facto, the title
to the office and the right to act cannot be questioned by prohibition. If an intruder takes
possession of a judicial office, the person dispossessed cannot obtain relief through a writ of
prohibition commanding the alleged intruder to cease from performing judicial acts, since in
its very nature prohibition is an improper remedy by which to determine the title to an office. 32
Even if the Court treats the case as one for quo warranto, the petition is, just the same, dismissible.
A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested
public office and to oust the holder from its enjoyment. 33 It is brought against the person who is
alleged to have usurped, intruded into, or unlawfully held or exercised the public office, 34 and may be
commenced by the Solicitor General or a public prosecutor, as the case may be, or by any person
claiming to be entitled to the public office or position usurped or unlawfully held or exercised by
another.35
Nothing is more settled than the principle, which goes back to the 1905 case of Acosta v.
Flor,36 reiterated in the recent 2008 case of Feliciano v. Villasin,37 that for a quo warranto petition to
be successful, the privateperson suing must show a clear right to the contested office. In fact,
not even a mere preferential right to be appointed thereto can lend a modicum of legal ground to
proceed with the action.38

In the present case, petitioner presented no sufficient proof of a clear and indubitable franchise to
the office of an Associate Justice of the Sandiganbayan. He in fact concedes that he was never
entitled to assume the office of an Associate Justice of the Sandiganbayan. 39
In the instance in which the Petition for Quo Warranto is filed by an individual in his own
name, he must be able to prove that he is entitled to the controverted public office, position,
or franchise; otherwise, the holder of the same has a right to the undisturbed possession
thereof. In actions for Quo Warranto to determine title to a public office, the complaint, to be
sufficient in form, must show that the plaintiff is entitled to the office. In Garcia v. Perez, this
Court ruled that the person instituting Quo Warranto proceedings on his own behalf, under
Section 5, Rule 66 of the Rules of Court, must aver and be able to show that he is entitled to
the office in dispute. Without such averment or evidence of such right, the action may be
dismissed at any stage.40 (Emphasis in the original)
The rightful authority of a judge, in the full exercise of his public judicial functions, cannot be
questioned by any merely private suitor, or by any other, except in the form especially provided by
law.41 To uphold such action would encourage every disgruntled citizen to resort to the courts,
thereby causing incalculable mischief and hindrance to the efficient operation of the governmental
machine.42
Clearly then, it becomes entirely unwarranted at this time to pass upon the citizenship of Ong. The
Court cannot, upon the authority of the present petition, determine said question without encroaching
on and preempting the proceedings emanating from the RTC case. Even petitioner clarifies that he
is not presently seeking a resolution on Ongs citizenship, even while he acknowledges the
uncertainty of Ongs natural-born citizenship.43
The present case is different from Kilosbayan Foundation v. Ermita, given Ongs actual physical
possession and exercise of the functions of the office of an Associate Justice of the Sandiganbayan,
which is a factor that sets into motion the de facto doctrine.
Suffice it to mention that a de facto officer is one who is in possession of the office and is discharging
its duties under color of authority, and by color of authority is meant that derived from an election or
appointment, however irregular or informal, so that the incumbent is not a mere volunteer.44 If a
person appointed to an office is subsequently declared ineligible therefor, his presumably valid
appointment will give him color of title that will confer on him the status of a de facto officer.45
x x x A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and
the legality of that assumption is open to the attack of the sovereign power alone.
Accordingly, it is a well-established principle, dating back from the earliest period and
repeatedly confirmed by an unbroken current of decisions, that the official acts of a de
facto judge are just as valid for all purposes as those of a de jurejudge, so far as the public or
third persons who are interested therein are concerned. 46
If only to protect the sanctity of dealings by the public with persons whose ostensible authority
emanates from the State, and without ruling on the conditions for the interplay of the de
facto doctrine, the Court declares that Ong may turn out to be either a de jure officer who is deemed,
in all respects, legally appointed and qualified and whose term of office has not expired, or a de
facto officer who enjoys certain rights, among which is that his title to said office may not be

contested except directly by writ of quo warranto,47 which contingencies all depend on the final
outcome of the RTC case.
With the foregoing disquisition, it becomes unnecessary to dwell on the ancillary issues raised by the
parties.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 202242

April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,


vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.
RESOLUTION
MENDOZA, J.:
This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).
By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.
On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:
WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.
This disposition is immediately executory.

SO ORDERED.
On July 31, 2012, following respondents motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in
the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:
WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Courts July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9
Pursuant to the same resolution, petitioner and respondents filed their respective memoranda. 10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12 vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13
Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.
Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered. An eighth member
was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in
the JBC, with each having one-half (1/2) of a vote. 17
1wphi1

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.
While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final
resolution of this case.
As these two issues are interrelated, the Court shall discuss them jointly.
Ruling of the Court
The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic. 19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.
For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular letter
"a" to describe "representative of Congress," the Filipino people through the Framers intended that
Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.
A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the

Congress, voting separately."20Another is Section 8 thereof which requires the nominee to replace
the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members." 22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.
The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of
electoral returns for the President and Vice-President, 26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.
In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.
On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:
I humbly reiterate my position that there should be only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.
The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."

Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.
In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the abovequoted provision of the Constitution. (Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:
8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of evennumbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)
In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:
As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)
In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:
A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commissions desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.
xxx
No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the House

of Representatives to coordinate and act as distinct bodies in furtherance of Congress role under
our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]
The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.
From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional circumvention
that cannot be countenanced by the Court. Succinctly put, when the Constitution envisioned one
member of Congress sitting in the JBC, it is sensible to presume that this representation carries with
him one full vote.
It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.
Respondents contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.
It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated
in Planters Products, Inc. v. Fertiphil Corporation:32
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a

statute prior to a determination of unconstitutionality is an operative fact and may have


consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it.33
Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.
Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.
In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted." 34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature
would have supplied had its attention been called to the omission, as that would be judicial
legislation."37
Stated differently, the Court has no power to add another member by judicial construction.
The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance. 38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.
WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.
The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.
SO ORDERED.

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