Republic of the Philippines

Supreme Court
Manila

EN BANC ARTURO M. DE CASTRO, Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO, Respondents. x-----------------------x JAIME N. SORIANO, Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner, G. R. No. 191002

G.R. No. 191032

G.R. No. 191057

- versus JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x 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.;

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

G.R. No. 191149

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 (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT 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, - versus -

G.R. No. 191342

G.R. No. 191420 Present: PUNO, C.J.,

JUDICIAL AND BAR COUNCIL

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

- versus -

CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: March 17, 2010

JUDICIAL AND BAR COUNCIL and HER EXCELLENCY 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 certiorari and 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 proper appointing authority, in the light of Constitution, existing laws and jurisprudence, JBC welcomes and will consider all views on matter. 18 January 2010. the the the the

(s gd.) 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 in G.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/oppositions-in-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/oppositionin-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/oppositionin-intervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; 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 the Omnibus 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, le gislators, 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. In Agan, 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 oppositorsintervenors 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 counter-insistence 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 confirmation Valenzuela 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 Commission . Intent of the Constitutional

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 on October 8, 1986 further show that the filling of a vacancy in the Supreme Court within the 90day 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 now deserves to be quickly sent to the dustbin of the unworthy and forgettable. We reverse Valenzuela. Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary. 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, had Valenzuela 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 15 between 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 November 30, 1998;

morning

of

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 lack locus 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 J. LEONARDO-DE CASTRO

TERESITA

Justice

Associate Associate Justice

ARTURO D. BRION Justice

DIOSDADO M. PERALTA Associate Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. PORTUGAL PEREZ Justice Associate Justice

JOSE Associate

JOSE CATRAL MENDOZA 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.

REYNATO

S. PUNO Chief Justice

[1] Filed on February 9, 2010. [2] 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] [35] [36]

Id., pp. 34-35. Id. 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 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 which 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); 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. [62] 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 adopted the 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. [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.

BANAT vs. COMELEC

EN BANC BARANGAY ASSOCIATION FOR G.R. No. 179271 NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), Petitioner, - versus COMMISSION ON ELECTIONS (sitting as the National Board of

Canvassers), Respondent. ARTS BUSINESS AND SCIENCE PROFESSIONALS, Intervenor. AANGAT TAYO, Intervenor. COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. (SENIOR CITIZENS), Intervenor. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x BAYAN MUNA, ADVOCACY FOR G.R. No. 179295 TEACHER EMPOWERMENT THROUGH ACTION, COOPERATION Present: AND HARMONY TOWARDS EDUCATIONAL REFORMS, INC., PUNO, C.J., and ABONO, QUISUMBI NG, Petitioners, YNAR ES-SANTIAGO,

CARPIO , AUSTRI A-MARTINEZ, CORON A, - versus MORALES, TINGA , CHICO -NAZARIO, VELAS CO, JR., NACHU RA, LEONA RDO-DE CASTRO, BRION, PERALT A, and BERSA MIN, JJ. COMMISSION ELECTIONS, ON Promulgated: CARPIO

Respondent. _______ ________________ x--------------------------------------------------x DECISION CARPIO, J.: The Case Petitioner in G.R. No. 179271 Barangay Association for National Advancement and Transparency (BANAT) in a petition for certiorari and mandamus,[1] assails the Resolution[2] promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELECs resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution.

The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens). Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition,[3] assails NBC Resolution No. 07-60[4] promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties, organizations and coalitions that obtained at least two percent of the total votes cast under the PartyList System. The COMELEC announced that, upon completion of the canvass of the party-list results, it would determine the total number of seats of each winning party, organization, or coalition in accordance with Veterans Federation Party v. COMELEC[5] (Veterans). Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295. The Facts

The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.[6] On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution, docketed as NBC No. 07041 (PL) before the NBC. BANAT filed its petition because [t]he Chairman and the Members of the [COMELEC] have recently been quoted in the national papers that the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating party-list seats.[7] There were no intervenors in BANATs petition before the NBC. BANAT filed a memorandum on 19 July 2007. On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party (Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and Abono. We quote NBC

Resolution No. 07-60 in its entirety below:

WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a total of fifteen million two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes under the Party-List System of Representation, in connection with the National and Local Elections conducted last 14 May 2007; WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of Canvassers reveals that the projected/maximum total party-list votes cannot go any higher than sixteen million seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the following statistical data: Projected/Maximum Party-List Votes for May 2007 Elections i. Total party-list votes already canvassed/tabulated ii. Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred) iii. Maximum party-list votes (based on 100% outcome) from areas not yet submitted for canvass (Bogo, Cebu; Bais City; Pantar, Lanao del Norte; and Pagalungan, Maguindanao) Maximum Total Party-List Votes WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part: 15,283,659 1,337,032

102,430 16,723,121

The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: provided, that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than three (3) seats. WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixty-two (334,462) votes; WHEREAS, the Supreme Court, in Citizens Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC adopting a formula for the additional seats of each party, organization or coalition receving more than the required two percent (2%) votes, stating that the same shall be determined only after all party-list ballots have been completely canvassed; WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred thirty four thousand four hundred sixty-two (334,462) votes are as follows: RANK PARTY/ORGANIZATION/ VOTES

COALITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 BUHAY 8 BAYAN MUNA 0 CIBAC 0 GABRIELA 1 APEC 1 A TEACHER 6 AKBAYAN 2 ALAGAD 6 BUTIL 2 COOP-NATCO 9 BATAS 1 ANAK PAWIS 6 ARC 4 ABONO 6

RECEIVED 1,163,21 972,73 760,26 610,45 538,97 476,03 470,87 423,07 405,05 390,02 386,36 376,03 338,19 337,04

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF

REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No. 07250, all the parties, organizations and coalitions included in the aforementioned list are therefore entitled to at least one seat under the party-list system of representation in the meantime. NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission on Elections, sitting en banc as the National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set forth below, the following parties, organizations and coalitions participating under the Party-List System: Buhay Hayaan Yumabong Bayan Muna Citizens Battle Against Corruption Gabriela Womens Party Association of Philippine Electric Cooperatives 6 Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc. 7 Akbayan! Citizens Action Party 8 Alagad 9 Luzon Farmers Party 10 Cooperative-Natco Network Party 11 Anak Pawis 1 2 3 4 5 BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCCO ANAKPAWIS

12 Alliance of Rural Concerns 13 Abono

ARC ABONO

This is without prejudice to the proclamation of other parties, organizations, or coalitions which may later on be established to have obtained at least two percent (2%) of the total actual votes cast under the Party-List System. The total number of seats of each winning party, organization or coalition shall be determined pursuant to Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results. The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to render the proceedings therein moot and academic. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.[8] (Emphasis in the original)

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the additional seats allocated to the appropriate parties. We quote from the COMELECs interpretation of the Veterans formula as found in NBC Resolution No. 07-72:
WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total number of party-list votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each; WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows: 1 2 Party-List BUHAY BAYAN MUNA Projected total number of votes 1,178,747 977,476

3 4 5 6 7 8 9 10 11 12 13

CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO ANAKPAWIS ARC ABONO

755,964 621,718 622,489 492,369 462,674 423,190 409,298 412,920 370,165 375,846 340,151

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the first party in accordance with Veterans Federation Party versus COMELEC, reiterated in Citizens Battle Against Corruption (CIBAC) versus COMELEC; WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats based on the formula prescribed by the Supreme Court in Veterans; WHEREAS, in determining the additional seats for the first party, the correct formula as expressed in Veterans, is: party Number of votes of Proportion of votes of first first

--------------------relative to total votes for Total votes for party-list system list system

party party-

wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional seats: Proportion of votes received Additional seats by the first party Equal to or at least 6% Two (2) additional seats Equal to or greater than 4% but less than 6% One (1) additional seat Less than 4% No additional seat WHEREAS, applying the above formula, Buhay obtained the following percentage: 1,178,747 -------16,261,369 = 0.07248 or 7.2%

which entitles it to two (2) additional seats. WHEREAS, in determining the additional seats for the other qualified parties, organizations and coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as follows: No. of votes of concerned party No. of additional Additional seats for = ------------------x seats allocated to

a concerned party of first party

No. of votes first party

WHEREAS, applying the above formula, the results are as follows: Party List BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO ANAKPAWIS ARC ABONO Percentage 1.65 1.28 1.05 1.05 0.83 0.78 0.71 0.69 0.69 0.62 0.63 0.57 Additional Seat 1 1 1 1 0 0 0 0 0 0 0 0

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats, to wit: Party List BUHAY Additional Seats 2

BAYAN MUNA CIBAC GABRIELA APEC

1 1 1 1

This is without prejudice to the proclamation of other parties, organizations or coalitions which may later on be established to have obtained at least two per cent (2%) of the total votes cast under the party-list system to entitle them to one (1) guaranteed seat, or to the appropriate percentage of votes to entitle them to one (1) additional seat. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.[9]

Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads as follows:
This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution filed by the Barangay Association for National Advancement and

Transparency (BANAT). Acting on the foregoing Petition of the Barangay Association for National Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)], which reads: COMMENTS / OBSERVATIONS: Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution prayed for the following reliefs, to wit: 1. That the full number -twenty percent (20%) -- of Party-List representatives as mandated by Section 5, Article VI of the Constitution shall be proclaimed. 2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941 in that it should be applicable only to the first party-list representative seats to be allotted on the basis of their

initial/first ranking. 3. The 3-seat limit prescribed by RA 7941 shall be applied; and 4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the votes they received and the additional seats shall be allocated in accordance with Section 12 of RA 7941, that is, in proportion to the percentage of votes obtained by each party-list group in relation to the total nationwide votes cast in the party-list election, after deducting the corresponding votes of those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the ALLOCATION OF PARTY-LIST SEATS, ANNEX A of COMELEC RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining how many seats shall be proclaimed, which party-list groups are entitled to representative seats and how many of their nominees shall seat [sic]. 5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the procedure in allocating seats for party-list representative prescribed

by Section 12 of RA 7941 shall be followed. RECOMMENDATION: The petition of BANAT is now moot and academic. The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re In the Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions Participating Under the Party-List System During the May 14, 2007 National and Local Elections resolved among others that the total number of seats of each winning party, organization or coalition shall be determined pursuant to the Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results. WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic. Let the Supervisory Committee implement this resolution.

SO ORDERED.[10]

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88. On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC.[11] Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines, Inc. (AGAP),[12] Anak Mindanao (AMIN),[13] and An Waray.[14] Per the certification[15] by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008:
Party-List 1.1 Buhay No. of Seat(s) 3

1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15

Bayan Muna CIBAC Gabriela APEC A Teacher Akbayan Alagad Butil Coop-Natco [sic] Anak Pawis ARC Abono AGAP AMIN

2 2 2 2 1 1 1 1 1 1 1 1 1 1

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an Urgent Petition for Cancellation/Removal of Registration and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250. Issues BANAT brought the following issues before this Court:
1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the Constitution mandatory or is it merely a ceiling?

2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold and qualifier votes prescribed by the same Section 11(b) of RA 7941 constitutional? 4. How shall the party-list representatives be allocated?[16]

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition:
I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to implement the FirstParty Rule in the allocation of seats to qualified party-list organizations as said rule: A. Violates the constitutional principle of proportional representation. B. particularly: Violates the provisions of RA 7941

1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the First Party violates the principle of proportional representation under RA 7941.

2. The use of two formulas in the allocation of additional seats, one for the First Party and another for the qualifying parties, violates Section 11(b) of RA 7941. 3. relationships Party required under RA proportional under the First Rule are different from those 7941; The

C. Violates the Four Inviolable Parameters of the Philippine party-list system as provided for under the same case of Veterans Federation Party, et al. v. COMELEC. II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it implemented the First-Party Rule in the allocation of seats to qualified party-list organizations, the same being merely in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant Petition is a justiciable case as the issues involved herein are constitutional in nature, involving the correct interpretation and implementation of RA 7941, and are of transcendental importance to our nation.[17]

Considering the allegations in the petitions and

the comments of the parties in these cases, we defined the following issues in our advisory for the oral arguments set on 22 April 2008:
1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the Constitution mandatory or merely a ceiling? 2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat constitutional? 4. How shall the party-list representative seats be allocated? 5. Does the Constitution prohibit the major political parties from participating in the partylist elections? If not, can the major political parties be barred from participating in the partylist elections?[18]

The Ruling of the Court The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four inviolable parameters as clearly stated in Veterans. For easy reference, these are:
First, the twenty percent allocation the

combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list; Second, the two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives; Third, the three-seat limit each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats; Fourth, proportional representation the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes.[19]

However, because the formula in Veterans has flaws in its mathematical interpretation of the term proportional representation, this Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations. Number of Party-List Representatives: The Formula Mandated by the Constitution Section 5, Article VI of the Constitution provides:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the partylist. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx

Section 5(1), Article VI of the Constitution states that the House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law. The House of Representatives shall be composed of district representatives and partylist representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives. Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the total number of representatives. We compute the number of seats available to party-list representatives from the number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus:
Number of seats available to legislative districts .80 x .20 = Number of seats available to party-list representatives

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. Since the 14th Congress of the Philippines has 220 district representatives, there are 55 seats available to party-list representatives.

220 .80

x .20 =

55

After prescribing the ratio of the number of partylist representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to party-list representatives to the wisdom of the legislature. Allocation of Seats for Party-List Representatives: The Statutory Limits Presented by the Two Percent Threshold and the Three-Seat Cap All parties agree on the formula to determine the maximum number of seats reserved under the Party-List System, as well as on the formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of additional seats under the Party-List System. Veterans produced the First Party Rule,[20] and Justice Vicente V. Mendozas dissent in Veterans presented Germanys Niemeyer formula[21] as an alternative. The Constitution left to Congress the determination of the manner of allocating the seats for

party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide:
Section 11. Number Representatives. x x x of Party-List

In determining the allocation of seats for the second vote,[22] the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Section 12. Procedure in Allocating Seats for Party-List Representatives. The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the

total nationwide votes cast for the party-list system. (Emphasis supplied)

In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate partylist representative seats. The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2% requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as follows:
(a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the House of Representatives including those from the party-list groups as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All seats shall have to be proclaimed. (b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total party-list votes they obtained; provided, that no party-list groups shall have more than three (3) seats (Section 11, RA 7941). (c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the immediately preceding paragraph and after

deducting from their total the votes corresponding to those seats, the remaining seats shall be allotted proportionately to all the party-list groups which have not secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA 7941.[23]

Forty-four (44) party-list seats will be awarded under BANATs first interpretation. The second interpretation presented by BANAT assumes that the 2% vote requirement is declared unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A. No. 7941. BANAT states that the COMELEC:
(a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis; (b) rank them according to the number of votes received; and, (c) allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization or coalition as against the total nationwide votes cast for the party-list system.[24]

BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes received by each party as against the total nationwide party-list votes, and the other is by making the votes of

a party-list with a median percentage of votes as the divisor in computing the allocation of seats.[25] Thirty-four (34) party-list seats will be awarded under BANATs second interpretation. In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs original 2-4-6 formula and the Veterans formula for systematically preventing all the party-list seats from being filled up. They claim that both formulas do not factor in the total number of seats alloted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After determining the qualified parties, a second percentage is generated by dividing the votes of a qualified party by the total votes of all qualified parties only. The number of seats allocated to a qualified party is computed by multiplying the total party-list seats available with the second percentage. There will be a first round of seat allocation, limited to using the whole integers as the equivalent of the number of seats allocated to the concerned party-list. After all the qualified parties are given their seats, a second round of seat allocation is conducted. The fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining seats on the basis of this ranking are allocated until all the seats are filled up.[26] We examine what R.A. No. 7941 prescribes to

allocate seats for party-list representatives. Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the lowest based on the number of votes they garnered during the elections.
Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes garnered during the elections.[27] Ran Votes Ran Votes Party Party k Garnered k Garnered 1 BUHAY 1,169,234 48 KALAHI 88,868 2 BAYAN 979,039 49 APOI 79,386 MUNA 3 CIBAC 755,686 50 BP 78,541 4 GABRIELA 621,171 51 AHONBAYAN 78,424 5 APEC 619,657 52 BIGKIS 77,327 6 A TEACHER 490,379 53 PMAP 75,200 7 AKBAYAN 466,112 54 AKAPIN 74,686 8 ALAGAD 423,149 55 PBA 71,544 9 COOP409,883 56 GRECON 62,220 NATCCO 10 BUTIL 409,160 57 BTM 60,993 11 BATAS 385,810 58 A SMILE 58,717 12 ARC 374,288 59 NELFFI 57,872 13 ANAKPAWIS 370,261 60 AKSA 57,012 14 ABONO 339,990 61 BAGO 55,846 15 AMIN 338,185 62 BANDILA 54,751

16 17 18 19 20 21 22 23 24 25 26

AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF SENIOR CITIZENS 27 AT 28 VFP 29 ANAD 30 BANAT 31 ANG KASANGGA 32 BANTAY 33 34 35 36 37 38 ABAKADA 1-UTAK TUCP COCOFED AGHAM ANAK

328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980 162,647 155,920 146,032 141,817 130,356 119,054 110,769

63 64 65 66 67 68 69 70 71 72 73

AHON ASAHAN MO AGBIAG! SPI BAHANDI ADD AMANG ABAY PARAK BABAE KA SB ASAP

54,522 51,722 50,837 50,478 46,612 45,624 43,062 42,282 36,512 34,835 34,098 33,938 33,903 33,691 32,896 32,255 29,130 26,271 25,781 22,946 20,744 16,916 16,729 16,421 16,241 14,161

74 PEP 75 ABA ILONGGO 76 VENDORS 77 ADD-TRIBAL 78 ALMANA 79 AANGAT KA PILIPINO 80 AAPS 81 HAPI 82 AAWAS 83 SM 84 AG 85 AGING PINOY 86 APO 87 BIYAYANG BUKID 88 ATS

39 ABANSE! PINAY 40 PM 41 AVE

42 SUARA 43 ASSALAM 44 DIWA 45 ANC 46 SANLAKAS 47 ABC

110,732 110,440 107,021 99,636 97,375 90,058

89 UMDJ 90 BUKLOD FILIPINA 91 LYPAD 92 AAKASOSYO 93 KASAPI TOTAL

9,445 8,915 8,471 8,406 6,221 15,950,90 0

The first clause of Section 11(b) of R.A. No. 7941 states that parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each. This clause guarantees a seat to the twopercenters. In Table 2 below, we use the first 20 partylist candidates for illustration purposes. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all partylist candidates.
Table 2. The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for the party-list.[28] Votes Garnered over Total Votes Guaranteed Votes for Garnered Seat Party-List, in % 1,169,234 7.33% 1

Rank

Party

1 BUHAY

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD COOP-NATCCO BUTIL BATAS[29] ARC ANAKPAWIS ABONO AMIN AGAP AN WARAY Total 18 YACAP 19 FPJPM 20 UNI-MAD

979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382

6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1.95% 1.89% 1.54%

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 17 0 0 0

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates. The 17 qualified party-list candidates, or the two-percenters, are the party-list candidates that are entitled to one seat each, or the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats. The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering more than two percent (2%) of the votes shall be entitled to additional

seats in proportion to their total number of votes. This is where petitioners and intervenors problem with the formula in Veterans lies. Veterans interprets the clause in proportion to their total number of votes to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941. We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties

get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available partylist seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied partylist seats to exceed 50 seats as long as the two percent threshold is present. We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of the broadest possible representation of party, sectoral or group interests in the House of Representatives.[30] In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed: 1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. 2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast

for the party-list system shall be entitled to one guaranteed seat each. 3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated. 4. Each party, organization, or coalition shall be entitled to not more than three (3) seats. In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every twopercenter. Thus, the remaining available seats for allocation as additional seats are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in Table 3 below to the twopercenters. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First,

the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a partys share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Votes Garnered over Total Votes for Party List, in % Guaranteed Seat Additional Seats

(B) plu (C), in whole integer

Rank

Party

Votes Garnered

(First Round) (A) 1 2 BUHAY BAYAN 1,169,234 979,039 7.33% 6.14% (B) 1 1

(Second Round) (C) 2.79 2.33 (D)

3 4 5 6 7 8 9[31] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34

MUNA CIBAC GABRIELA APEC A Teacher AKBAYAN ALAGAD COOPNATCCO BUTIL BATAS ARC ANAKPAWI S ABONO AMIN AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF SENIOR CITIZENS AT VFP ANAD BANAT ANG KASANGG A BANTAY ABAKADA 1-UTAK

755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980

4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1.95% 1.89% 1.54% 1.47% 1.44% 1.43% 1.37% 1.37% 1.34% 1.24% 1.23% 1.18% 1.11% 1.07% 1.06% 1.05% 1.03%

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

1.80 1.48 1.48 1.17 1.11 1.01 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

35 36 Total

TUCP COCOFED

162,647 155,920

1.02% 0.98%

0 0 17

1 1

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list representatives from the 36 winning party-list organizations. All 55 available party-list seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats for each party, are shown in column (D). Participation of Major Political Parties in Party-List Elections The Constitutional Commission adopted a multiparty system that allowed all political parties to participate in the party-list elections. The deliberations of the Constitutional Commission clearly bear this out, thus:
MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. x x x We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit

within the 50 allocated under the party list system. x x x. xxx MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My question is this: Are we going to classify for example Christian Democrats and Social Democrats as political parties? Can they run under the party list concept or must they be under the district legislation side of it only? MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field candidates for the Senate as well as for the House of Representatives. Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are allocating under the party list system. MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also participate in the party list system? MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral candidates. MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system? MR. VILLACORTA. Yes, why not? For as

long as they field candidates who come from the different marginalized sectors that we shall designate in this Constitution. MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. No, Senator Taada would not qualify. MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not? MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly minority political parties, are not prohibited to participate in the party list election if they can prove that they are also organized along sectoral lines. MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is precisely the contention of political parties that they represent the broad base of citizens and that all sectors are represented in them. Would the Commissioner agree? MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list system. Gusto ko

lamang bigyan ng diin ang reserve. Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties. MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running under the party list system? MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO may be allowed to register for the party list system. MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer? MR. TADEO. The same. MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines. xxxx MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and mass organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they should not be able to make common goals with mass organizations so that the very leadership of these parties can be transformed through the participation

of mass organizations. And if this is true of the administration parties, this will be true of others like the Partido ng Bayan which is now being formed. There is no question that they will be attractive to many mass organizations. In the opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so that with their participation, the policies of such parties can be radically transformed because this amendment will create conditions that will challenge both the mass organizations and the political parties to come together. And the party list system is certainly available, although it is open to all the parties. It is understood that the parties will enter in the roll of the COMELEC the names of representatives of mass organizations affiliated with them. So that we may, in time, develop this excellent system that they have in Europe where labor organizations and cooperatives, for example, distribute themselves either in the Social Democratic Party and the Christian Democratic Party in Germany, and their very presence there has a transforming effect upon the philosophies and the leadership of those parties. It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic Party. But the businessmen, most of them, always vote with the Republican Party, meaning that there is no reason at all why political parties and mass organizations should not combine, reenforce, influence and interact with each other so that the very objectives that we set in this Constitution for sectoral representation are achieved in a wider, more lasting, and more institutionalized

way. Therefore, I support this [Monsod-Villacorta] amendment. It installs sectoral representation as a constitutional gift, but at the same time, it challenges the sector to rise to the majesty of being elected representatives later on through a party list system; and even beyond that, to become actual political parties capable of contesting political power in the wider constitutional arena for major political parties. x x x [32] (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put forward by the Constitutional Commission. Section 3 of R.A. No. 7941 reads:
Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the party-list system. (b) A party means either a political party or a sectoral party or a coalition of parties. (c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption,

regularly nominates and supports certain of its leaders and members as candidates for public office. It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interests and concerns of their sector, (e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. (f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections. Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties

to participate in party-list elections through their sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the reservation of the party-list system to the sectoral groups.[33] In defining a party that participates in party-list elections as either a political party or a sectoral party, R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding the major political parties in partylist elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the exclusion of major political parties from the party-list elections in patent violation of the Constitution and the law. Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for example, the Liberal Party participates in the partylist election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and this

fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor. The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:
Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the elections, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term.

Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organizations nominee wallow in poverty, destitution and infirmity[34] as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition

belongs to the marginalized and underrepresented sectors,[35] that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen. Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in the Constitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House of Representatives to Congress: The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, x x x. The 20% allocation of party-list representatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of Representatives. However, we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that prevents any party from dominating the party-list elections. Seats for party-list representatives shall thus be allocated in accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with this ponencia. WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the distribution of additional partylist seats. The allocation of additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections. This Decision is immediately executory. No pronouncement as to costs. SO ORDERED. ANTONIO T. CARPIO Associ

ate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARE Associate Ju

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. C Associate Ju

CONCHITA CARPIO MORALES

DANTE O. T

Associate Justice

Associate J

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. V Associate Ju

ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONA Associate J

ARTURO D. BRION Associate Justice

DIOSDADO M Associat

LUCAS P. BERSAMIN 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

[1] Under Rule 65 of the 1997 Rules of Civil Procedure. [2] Rollo (G.R. No. 179271), pp. 86-87. Signed by Chairman Benjamin S. Abalos, Sr., Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, Rene V. Sarmiento, and Nicodemo T. Ferrer. [3] Under Rule 65 of the 1997 Rules of Civil Procedure. [4] Rollo (G.R. No. 179295), pp. 103-108. Signed by Chairman Benjamin S. Abalos, Sr., Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, Rene V. Sarmiento, and Nicodemo T. Ferrer. [5] 396 Phil. 419 (2000). [6] Rollo (G.R. No. 179271), pp. 969-986; rollo (G.R. No. 179295), pp. 798815. Party-List Canvass Report No. 32, as of 31 August 2007, 6:00 p.m. [7] Rollo (G.R. No. 179271), p. 70. [8] Rollo (G.R. No. 179271), pp. 88-92. [9] Id. at 150-153. [10] Id. at 86-87. [11] Rollo (G.R. No. 179295), p. 112. [12] Rollo (G.R. No. 179271), pp. 158-159. NBC Resolution No. 07-74, 24 July 2007. [13] Id. at 160-161. NBC Resolution No. 07-87, 3 August 2007. [14] NBC Resolution No. 07-97, 4 September 2007. [15] Rollo (G.R. No. 179295), pp. 816-817. This COMELEC certification should have included An Waray, which was proclaimed on 4 September 2007 under NBC Resolution No. 07-97. [16] Rollo (G.R. No. 179271), p. 14. [17] Rollo (G.R. No. 179295), pp. 21-22. [18] Rollo (G.R. No. 179271), p. 553; rollo (G. R. No. 179295), p. 341. [19] Supra note 5 at 424. [20] Id. at 446-451. We quote below the discussion in Veterans explaining the First Party Rule:

Formula for Determining Additional Seats for the First Party Now, how do we determine the number of seats the first party is entitled to? The only basis given by the law is that a party receiving at least two percent of the total votes shall be entitled to one seat. Proportionally, if the first party were to receive twice the number of votes of the second party, it should be entitled to twice the latters number of seats and so on. The formula, therefore, for computing the number of seats to which the first party is entitled is as follows: Number of votes of first party -------------------Total votes for system party -list system If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat. We adopted this six percent bench mark, because the first party is not always entitled to the maximum number of additional seats. Likewise, it would prevent the allotment of more than the total number of available seats, such as in an extreme case wherein 18 or more parties tie for the highest rank and are thus entitled to three seats each. In such scenario, the number of seats to which all the parties are entitled may exceed the maximum number of party-list seats reserved in the House of Representatives. xxx Note that the above formula will be applicable only in determining the number of additional seats the first party is entitled to. It cannot be used to determine the number of additional seats of the other qualified parties. As explained earlier, the use of the same formula for all would contravene the proportional representation parameter. For example, a Proportion of votes of first party relative to total votes for party-list

second party obtains six percent of the total number of votes cast. According to the above formula, the said party would be entitled to two additional seats or a total of three seats overall. However, if the first party received a significantly higher amount of votes say, twenty percent to grant it the same number of seats as the second party would violate the statutory mandate of proportional representation, since a party getting only six percent of the votes will have an equal number of representatives as the one obtaining twenty percent. The proper solution, therefore, is to grant the first party a total of three seats; and the party receiving six percent, additional seats in proportion to those of the first party. Formula for Additional Seats of Other Qualified Parties Step Three The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula is encompassed by the following complex fraction: No. of votes of concerned party -----------------Total no. of votes for party-list system ----------------------No. of votes of first party -------------Total no. of votes for party list system In simplified form, it is written as follows: No. of votes of party for concerned to Additional seats No. of additional = -----------------concerned x seats allocated x

Additional seats additional for concerned = to party first party

No. of seats allocated the

party first party

No. of votes of first party

the

xxx Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of votes for the other party to that for the first one is multiplied by zero. The end result would be zero additional seat for each of the other qualified parties as well. The above formula does not give an exact mathematical representation of the number of additional seats to be awarded since, in order to be entitled to one additional seat, an exact whole number is necessary. In fact, most of the actual mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. To repeat, rounding off may result in the awarding of a number of seats in excess of that provided by the law. Furthermore, obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots. An increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate proportional representation. But the law itself has set the limit: only two additional seats. Hence, we need to work within such extant parameter. [21] Id. at 475-481. [22] The second vote cast by a registered voter is for the party-list candidates as provided in Section 10 of R.A. No. 7941. [23] Rollo (G.R. No. 179271), p. 47. [24] Id. at 48. [25] Id. at 1076. [26] Rollo (G.R. No. 179295), pp. 66-81. [27] Rollo (G.R. No. 179271), pp. 969-974; rollo (G.R. No. 179295), pp. 798803. Party-List Canvass Report No. 32, as of 31 August 2007, 6:00 p.m. [28] Id. [29] Proclamation deferred by COMELEC. [30] Section 2, R.A. No. 7941. [31] The product of the percentage and the remaining available seats of all parties ranked nine and below is less than one. [32] II RECORD, CONSTITUTIONAL COMMISSION 256-257 (25 July 1986), 568 (1 August 1986). [33] Id. at 584 (1 August 1986). Dissenting opinion of Justice Jose C. Vitug in Ang Bagong BayaniOFW Labor Party v. COMELEC, 412 Phil.

308, 350 (2001). [34] Ang Bagong Bayani-OFW Labor Party v. COMELEC, 412 Phil. 308, 336 (2001). [35] Section 2, R.A. No. 7941.

WHITE LIGHT vs. COMELEC

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 122846 January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners, vs. CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent. DECISION Tinga, J.: With another city ordinance of Manila also principally involving the tourist district as subject, the Court is confronted anew with the incessant clash between government power and individual liberty in tandem with the archetypal tension between law and morality. In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a similarlymotivated city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the present petition. This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City Ordinance No. 7774

entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila" (the Ordinance). I. The facts are as follows: On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance.4 The Ordinance is reproduced in full, hereunder: SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best interest, health and welfare, and the morality of its constituents in general and the youth in particular. SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila. SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila. SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be concocted by owners or managers of said establishments but would mean the same or would bear the same meaning. SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon conviction thereof be punished by a fine of Five Thousand

(P5,000.00) Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party shall automatically be cancelled. SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure or any portion hereof are hereby deemed repealed. SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval. Enacted by the city Council of Manila at its regular session today, November 10, 1992. Approved by His Honor, the Mayor on December 3, 1992. On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City) represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours. On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-inintervention7 on the ground that the Ordinance directly

affects their business interests as operators of drive-inhotels and motels in Manila.8 The three companies are components of the Anito Group of Companies which owns and operates several hotels and motels in Metro Manila.9 On December 23, 1992, the RTC granted the motion to intervene.10 The RTC also notified the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC moved to withdraw as plaintiff.11 On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The RTC issued a TRO on January 14, 1993, directing the City to cease and desist from enforcing the Ordinance.13 The City filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police power.14 On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his Comment arguing that the Ordinance is constitutional. During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the case involved a purely legal question.16 On October 20, 1993, the RTC rendered a decision declaring the Ordinance null and void. The dispositive portion of the decision reads: WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared null and void. Accordingly, the preliminary injunction heretofor issued is hereby made permanent. SO ORDERED.17 The RTC noted that the ordinance "strikes at the personal

liberty of the individual guaranteed and jealously guarded by the Constitution."18 Reference was made to the provisions of the Constitution encouraging private enterprises and the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v. Intermediate Appellate Court,19 where the legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be effected through an inter-province ban on the transport of carabaos and carabeef. The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated the petition as a petition for certiorari and referred the petition to the Court of Appeals.21 Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the power: [To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides and transports.22 The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the Revised Manila Charter, thus: "to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity and the promotion of the morality, peace, good

order, comfort, convenience and general welfare of the city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense.23 Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive interference in their business. The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance.24 First, it held that the Ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the owners or operators of establishments that admit individuals for short time stays. Second, the virtually limitless reach of police power is only constrained by having a lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the establishments are still allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty is regulated by law. TC, WLC and STDC come to this Court via petition for review on certiorari.25 In their petition and Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals. They contend that the assailed Ordinance is an invalid exercise of police power. II. We must address the threshold issue of petitioners standing. Petitioners allege that as owners of

establishments offering "wash-up" rates, their business is being unlawfully interfered with by the Ordinance. However, petitioners also allege that the equal protection rights of their clients are also being interfered with. Thus, the crux of the matter is whether or not these establishments have the requisite standing to plead for protection of their patrons' equal protection rights. Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. More importantly, the doctrine of standing is built on the principle of separation of powers,26 sparing as it does unnecessary interference or invalidation by the judicial branch of the actions rendered by its coequal branches of government. The requirement of standing is a core component of the judicial system derived directly from the Constitution.27 The constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise definition.28 In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious cause, as well as the standard test for a petitioner's standing.29 In a similar vein, the United States Supreme Court reviewed and elaborated on the meaning of the three constitutional standing requirements of injury, causation, and redressability in Allen v. Wright.30 Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.31 For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote that: "We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant

must have suffered an injury-in-fact, thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests."33 Herein, it is clear that the business interests of the petitioners are likewise injured by the Ordinance. They rely on the patronage of their customers for their continued viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of such special interest groups in our nation such as the American Civil Liberties Union in the United States may also be construed as a hindrance for customers to bring suit.34 American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by state action. In Griswold v. Connecticut,35 the United States Supreme Court held that physicians had standing to challenge a reproductive health statute that would penalize them as accessories as well as to plead the constitutional protections available to their patients. The Court held that: "The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them."36 An even more analogous example may be found in Craig v. Boren,37 wherein the United States Supreme Court held that a licensed beverage vendor has standing to raise the equal protection claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18. The United States High Court explained that the vendors had standing "by acting as advocates of the rights of third

parties who seek access to their market or function."38 Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights.39 In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that based on the allegations in the petition, the Ordinance suffers from overbreadth. We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their establishments for a "wash-rate" time frame. III. To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila.40 Ermita-Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by the Court. The common thread that runs through those decisions and

the case at bar goes beyond the singularity of the localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate the lives of its citizens. The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.41 The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause. A. Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the conditions warrant.42 Police power is based upon the concept of necessity of the State and its corresponding right to protect itself and its people.43 Police power has been used as justification for numerous and varied actions

by the State. These range from the regulation of dance halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nations legal system, its use has rarely been denied. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political majorities animated by his cynicism. Even as we design the precedents that establish the framework for analysis of due process or equal protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of government as they exercise their political functions. But when we are compelled to nullify executive or legislative actions, yet another form of caution emerges. If the Court were animated by the same passing fancies or turbulent emotions that motivate many political decisions, judicial integrity is compromised by any perception that the judiciary is merely the third political branch of government. We derive our respect and good standing in the annals of history by acting as judicious and neutral arbiters of the rule of law, and there is no surer way to that end than through the development of rigorous and sophisticated legal standards through which the courts analyze the most fundamental and far-reaching constitutional questions of the day. B.

The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article III of the Constitution. Due process evades a precise definition.48 The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned. The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property.49 Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing. If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property.50 The question of substantive due process, moreso than most other fields of law, has reflected dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due process has not been predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the

libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to determine the proper metes and bounds for its application. C. The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products.51 Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a discrimination against a "discrete and insular" minority or infringement of a "fundamental right."52 Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation. A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender53 and legitimacy.54 Immediate scrutiny was adopted by the U.S. Supreme Court in Craig,55 after the Court declined to do so in Reed v. Reed.56 While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well. We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges.57 Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest.58 Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered.59 Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the

absence of less restrictive means for achieving that interest. In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms.60 Strict scrutiny is used today to test the validity 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.61 The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage,62 judicial access63 and interstate travel.64 If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon is the injury to property sustained by the petitioners, an injury that would warrant the application of the most deferential standard the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons those persons who would be deprived of availing short time access or wash-up rates to the lodging establishments in question. Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn of political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which the people reflexively exercise any day without the impairing awareness of their constitutional consequence that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a fundamental right in the Constitution, is not a Ten Commandments-style

enumeration of what may or what may not be done; but rather an atmosphere of freedom where the people do not feel labored under a Big Brother presence as they interact with each other, their society and nature, in a manner innately understood by them as inherent, without doing harm or injury to others. D. The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus: Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare."[65] In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.[66] The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of "liberty." It said: While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as

essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed.67 [Citations omitted] It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City asserts before this Court that the subject establishments "have gained notoriety as venue of prostitution, adultery and fornications in Manila since they provide the necessary atmosphere for clandestine entry, presence and exit and thus became the ideal haven for prostitutes and thrill-seekers."68 Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults which is constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our holding therein retains significance for our purposes: The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated: Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense free. Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified by a compelling state interest. Morfe accorded

recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen.70 We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative. E. That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights.71 It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily

invaded.72 Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or property is affected.73 However, this is not in any way meant to take it away from the vastness of State police power whose exercise enjoys the presumption of validity.74 Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this Ordinance is a blunt and heavy instrument.75 The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the unjustified prohibition. The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime home,76 and it is skeptical of those who wish to depict our capital city the Pearl of the Orient as a modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem confronted by the modern metropolis wherever in the world. The solution to such perceived decay is not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of individuals that would bring a new grandeur to Manila. The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished

simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging their customers a portion of the rent for motel rooms and even apartments. IV. We reiterate that individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens. However well--intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions. The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the judiciary provided that such measures do not trample rights this Court is sworn to protect.77 The notion that the promotion of public morality is a function of the State is as old as Aristotle.78 The advancement of moral relativism as a school of philosophy does not de-legitimize the role of morality in law, even if it may foster wider debate on which

particular behavior to penalize. It is conceivable that a society with relatively little shared morality among its citizens could be functional so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation of different interests.79 To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at variance with public attitudes about right and wrong.80 Our penal laws, for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions between right and wrong, they will remain so oriented. Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest. Our democracy is distinguished from non-free societies not with any more extensive elaboration on our part of what is moral and immoral, but from our recognition that the individual liberty to make the choices in our lives is innate, and protected by the State. Independent and fair-minded judges themselves are under a moral duty to uphold the Constitution as the embodiment of the rule of law, by reason of their expression of consent to do so when they take the oath of office, and because they are entrusted by the people to uphold the law.81 Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And while the tension may often be left to the courts to relieve, it is possible for the government to avoid the constitutional conflict by employing more judicious, less drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs. SO ORDERED. DANTE O. TINGA Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice LEONARDO A. QUISUMBING Associate Justice (On Official Leave) ANTONIO T. CARPIO Associate Justice RENATO C. CORONA Associate Justice ADOLFO S. AZCUNA Associate Justice MINITA V. CHICO-NAZARIO Associate Justice TERESITA LEONARDO DE CASTRO Associate Justice (On Official Leave) DIOSDADO M. PERALTA Associate Justice CERTIFICATION 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. REYNATO S. PUNO Chief Justice

CONSUELO YNARESAssociate Just

MA. ALICIA AUSTRIAAssociate Just

CONCHITA CARPIO M Associate Just PRESBITERO J. VELA Associate Just ANTONIO EDUARDO B Associate Just (On Sick Leav ARTURO D. BR Associate Just

Footnotes
1

G.R. 118127, 12 April 2005, 455 SCRA 308. See rollo, pp. 4-41.

Id. at 42-59. Penned by Associate Justice Jaime M. Lantin, concurred in by Associate Justices Ricardo P. Galvez (later, Solicitor-General) and Antonio P. Solano.
4

Id. at 46. Id. at 62-69. Id. at 45-46. Id. at 70-77. Id. at 47.

Id. Id. Id. at 48. Id. at 81. Id. at 82-83. Id. at 84-99. Id. at 104-105. Id. at 49. Id. at 52.

10

11

12

13

14

15

16

17

18

Id. at 120. No. L-74457, 20 March 1987, 148 SCRA 659.

19

20

Rollo, pp. 129-145. Id. at 158. Id. at 53. Id. Id. at 43-59. Id. at 4-40. Allen v. Wright, 468 U.S. 737 (1984).

21

22

23

24

25

26

27

Const., Art. VIII , Sec. 5, Sanlakas v. Executive Secretary Reyes, 466 Phil. 482 (2004).
28

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979).
29

See Domingo v. Carague, G.R. No. 161065, 15 April 2005, 456 SCRA 450. See also Macasiano v. National Housing Authority, G.R. No. 107921, 1 July 1993, 224 SCRA 236.
30

468 U.S. 737 (1984).

31

Supra note 29. 499 U.S. 400 (1991). Id. at p 410-411.

32

33

34

See Kelsey McCowan Heilman, The Rights of Others: Protection and Advocacy Organizations Associational Standing to Sue, 157 U. Pa. L. Rev. 237, for a general discussion on advocacy groups.
35

381 U.S. 479(1965). Id. at 481.

36

37

429 U.S. 190 (1976). Id. at 194.

38

39

Chavez v. Comelec, G.R. No. 162777, 31 August 2004, 437 SCRA 415; Adiong v. Comelec, G.R. No. 103956, 31 March 1992, 207 SCRA 712.
40

127 Phil. 306 (1967).

41

City of Manila v. Laguio, Jr., supra note 1; Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, 161; Solicitor General v. Metropolitan Manila Authority, G.R. No. 102782, 11 December 1991, 204 SCRA 837, 845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 268-267.
42

Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 127 Phil. 306 (1967).
43

JMM Promotion and Management Inc. v. Court of Appeals, 329 Phil. 87, 94 (1996) citing Rubi v. Provincial Board of Mindoro, 39 Phil. 660 (1919).
44

U.S. v. Rodriguez, 38 Phil. 759. People v. Chan, 65 Phil. 611 (1938). Javier v. Earnshaw, 64 Phil. 626 (1937). Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931).

45

46

47

48

See U.S. v. Ling Su Fan, 10 Phil. 104 (1908); Insular Government v. Ling Su Fan, 15 Phil. 58 (1910).
49

Lopez v. Director of Lands, 47 Phil. 23, 32 (1924).

50

See City of Manila v. Hon. Laguio, Jr., supra note 1 at 330 citing CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES, 2nd Ed. 523 (2002).

51

304 U.S. 144 (1938). Id, at 152. Craig v. Boren, 429 U.S. 190 (1976). Clark v. Jeter, 486 U.S. 456 (1988). 429 U.S. 190 (1976). 404 U.S. 71 (1971).

52

53

54

55

56

Central Bank Employees Association v. Bangko Sentral ng Pilipinas, 487 Phil. 531 (2004); Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and 79777, July 14, 1989, 175 SCRA 343; In Ermita-Malate, supra note 1 at 324, the Court in fact noted: "if the liberty involved were freedom of the mind or the person, the standard for the validity of government acts is much more rigorous and exacting, but where the liberty curtailed affects what are at the most rights of property, the permissible scope of regulatory measures is wider."
57

Central Bank Employees Association v. Bangko Sentral ng Pilipinas, supra note 57.
58 59

Id.

60

Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan, G.R. No. 148560, 19 November 2001, 369 SCRA 394.
61

Id. Bush v. Gore, 531 U.S. 98 (2000). Boddie v. Connecticut, 401 U.S. 371 (1971).

62

63

64

Shapiro v. Thompson, 394 U.S. 618 (1969). It has been opined by Chemerinsky that the use of the equal

protection clause was to avoid the use of substantive due process since the latter fell into disfavor in the United States. See Erwin Chemerinsky, Constitutional Law, Principles and Policies (2nd ed. 2002).
65

Morfe v. Mutuc, 130 Phil. 415 (1968).

66

Id. at 440. City of Manila v. Laguio, Jr., supra note 1 at 336-337. Rollo, p. 258.

67

68

69

"Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motel's premises be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution. (See Concerned Employee v. Glenda Espiritu Mayor, A.M. No. P-02-1564, 23 November 2004) Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. The liberty protected by the Constitution allows persons the right to make this choice. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception. Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all freedom it is the most comprehensive of rights and the right most valued by civilized men." City of Manila v. Hon. Laguio, Jr. supra note 1 at 337-338.
70

City of Manila v. Laguio, Jr., supra note 1 at 338-339. Metro Manila Development Authority v. Viron

71

Transportation Co., G.R. Nos. 170656 and 170657, 15 August 2007, 530 SCRA 341.
72

U.S. v. Toribio, 15 Phil. 85 (1910). 130 Phil. 415 (1968).

73

74

Carlos Superdrug v. DSWD, G.R. No. 166494, June 29, 2007, Alalayan v. National Power Corporation, 24 Phil. 172 (1968); U.S. v. Salaveria, 39 Phil. 102 (1918).
75

Philippine Press Institute v. Comelec, 314 Phil. 131 (1995).

76

Supra note 1.

77

City of Manila v. Hon. Laguio, Jr., supra note 1; De La Cruz, et al. v. Hon. Paras, et al., 208 Phil. 490 (1983); Ermita-Malate Hotel and Motel Operations Association, Inc. v. City Mayor of Manila, supra note 42.
78

"The end of the state is not mere life; it is, rather, a good quality of life." Therefore any state "which is truly so called, and is not merely one in name, must devote itself to the end of encouraging goodness. Otherwise, a political association sinks into a mere alliance" The law "should be a rule of life such as will make the members of a [state] good and just." Otherwise it "becomes a mere covenant or (in the phrase of the Sophist Lycophron) a guarantor of mens rights against one another." Politics II.9.6-8.1280 31-1280bii; cited in Hamburger, M., Morals and Law: The Growth of Aristotles Legal Theory (1951 ed.), p. 178.
79

Greenwalt, K., Conflicts of Law and Morality (1989 ed.), at 38.

80

Steven G., Render Unto Caesar that which is Caesars, and unto God that which is Gods, 31 Harv. J.L. & Pub. Pol'y 495. He cites the example of the failed Twentieth (?) Amendment to the U.S. Constitution, which prohibited the sale and consumption of liquor, where it was clear that the

State cannot justly and successfully regulate consumption of alcohol, when huge portions of the population engage in its consumption. See also Posner, Richard H., The Problematics of Moral And Legal Theory, The Belknap Press of Harvard University Press (2002). He writes: . . . Holmes warned long ago of the pitfalls of misunderstanding law by taking its moral vocabulary too seriously. A big part of legal education consists of showing students how to skirt those pitfalls. The law uses moral terms in part because of its origin, in part to be impressive, in part to speak a language that the laity, to whom the commands of the law are addressed, is more likely to understand and in part, because there is a considerable overlap between law and morality. The overlap, however, is too limited to justify trying to align these two systems of social control (the sort of project that Islamic nations such as Iran, Pakistan, and Afghanistan have been engaged in of late). It is not a scandal when the law to pronounce it out of phase with current moral feeling. If often is, and for good practical reasons (in particular, the law is a flywheel, limiting the effects of wide swings in public opinion). When people make that criticismas many do of the laws, still found on the statute books of many states, punishing homosexual relationswhat they mean is that the law neither is supported by public opinion nor serves any temporal purpose, even that of stability, that it is merely a vestige, an empty symbol.
81

See Burton, S., Judging in Good Faith, (1992 ed.), at 218.

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To

Republic of the Philippines SUPREME COURT Manila G.R. No. 193459 February 15, 2011

MA. MERCEDITAS N. GUTIERREZ Petitioner, vs. THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA

HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAO, EVELYN PESTAO, RENATO M. REYES, JR., SECRETARY GENERAL OF BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS, SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE NATIONAL UNION OF PEOPLE'S LAWYERS (NUPL); FERDINAND R. GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE); and JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS (LFS), Respondents. FELICIANO BELMONTE, JR., Respondent-Intervenor. DECISION CARPIO MORALES, J.: The Ombudsman, Ma. Merceditas Gutierrez (petitioner), challenges via petition for certiorari and prohibition the Resolutions of September 1 and 7, 2010 of the House of Representatives Committee on Justice (public respondent). Before the 15th Congress opened its first session on July 26, 2010 (the fourth Monday of July, in accordance with Section 15, Article VI of the Constitution) or on July 22, 2010, private respondents Risa Hontiveros-Baraquel, Danilo Lim, and spouses Felipe and Evelyn Pestao (Baraquel group) filed an impeachment complaint1 against petitioner, upon the endorsement of Party-List Representatives Arlene Bag-ao and Walden Bello.2 A day after the opening of the 15th Congress or on July 27, 2010, Atty. Marilyn Barua-Yap, Secretary General of the House of Representatives, transmitted the impeachment complaint to House Speaker Feliciano Belmonte, Jr.3 who, by Memorandum of August 2, 2010, directed the Committee on Rules to include it in the Order of Business.4 On August 3, 2010, private respondents Renato Reyes, Jr., Mother Mary John Mananzan, Danilo Ramos, Edre Olalia, Ferdinand Gaite and James Terry Ridon (Reyes group) filed another impeachment

complaint5 against petitioner with a resolution of endorsement by Party-List Representatives Neri Javier Colmenares, Teodoro Casio, Rafael Mariano, Luzviminda Ilagan, Antonio Tinio and Emerenciana de Jesus.6 On even date, the House of Representatives provisionally adopted the Rules of Procedure in Impeachment Proceedings of the 14th Congress. By letter still of even date,7 the Secretary General transmitted the Reyes groups complaint to Speaker Belmonte who, by Memorandum of August 9, 2010,8 also directed the Committee on Rules to include it in the Order of Business. On August 10, 2010, House Majority Leader Neptali Gonzales II, as chairperson of the Committee on Rules,9 instructed Atty. Artemio Adasa, Jr., Deputy Secretary General for Operations, through Atty. Cesar Pareja, Executive Director of the Plenary Affairs Department, to include the two complaints in the Order of Business,10 which was complied with by their inclusion in the Order of Business for the following day, August 11, 2010. On August 11, 2010 at 4:47 p.m., during its plenary session, the House of Representatives simultaneously referred both complaints to public respondent.11 After hearing, public respondent, by Resolution of September 1, 2010, found both complaints sufficient in form, which complaints it considered to have been referred to it at exactly the same time. Meanwhile, the Rules of Procedure in Impeachment Proceedings of the 15th Congress was published on September 2, 2010. On September 6, 2010, petitioner tried to file a motion to reconsider the September 1, 2010 Resolution of public respondent. Public respondent refused to accept the motion, however, for prematurity; instead, it advised petitioner to await the notice for her to file an answer to the complaints, drawing petitioner to furnish copies of her motion to each of the 55 members of public respondent. After hearing, public respondent, by Resolution of September 7, 2010, found the two complaints, which both allege culpable violation of the Constitution and betrayal of public trust,12 sufficient in substance. The determination of the sufficiency of substance of the complaints by public respondent, which assumed hypothetically the

truth of their allegations, hinged on the issue of whether valid judgment to impeach could be rendered thereon. Petitioner was served also on September 7, 2010 a notice directing her to file an answer to the complaints within 10 days.13 Six days following her receipt of the notice to file answer or on September 13, 2010, petitioner filed with this Court the present petition with application for injunctive reliefs. The following day or on September 14, 2010, the Court En Banc RESOLVED to direct the issuance of a status quo ante order14 and to require respondents to comment on the petition in 10 days. The Court subsequently, by Resolution of September 21, 2010, directed the Office of the Solicitor General (OSG) to file in 10 days its Comment on the petition The Baraquel group which filed the first complaint, the Reyes group which filed the second complaint, and public respondent (through the OSG and private counsel) filed their respective Comments on September 27, 29 and 30, 2010. Speaker Belmonte filed a Motion for Leave to Intervene dated October 4, 2010 which the Court granted by Resolution of October 5, 2010. Under an Advisory15 issued by the Court, oral arguments were conducted on October 5 and 12, 2010, followed by petitioners filing of a Consolidated Reply of October 15, 2010 and the filing by the parties of Memoranda within the given 15-day period. The petition is harangued by procedural objections which the Court shall first resolve. Respondents raise the impropriety of the remedies of certiorari and prohibition. They argue that public respondent was not exercising any judicial, quasi-judicial or ministerial function in taking cognizance of the two impeachment complaints as it was exercising a political act that is discretionary in nature,16 and that its function is inquisitorial that is akin to a preliminary investigation.17 These same arguments were raised in Francisco, Jr. v. House of Representatives.18 The argument that impeachment proceedings are

beyond the reach of judicial review was debunked in this wise: 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, our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, 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." 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 welldefined limits, or in the language of Baker v. Carr,"judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. xxxx

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., 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 Taada v. Angara, 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, 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, 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, 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 Taada v. Cuenco, 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, 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." 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.19 (citations omitted; italics in the original; underscoring

supplied) Francisco characterizes the power of judicial review as a duty which, as the expanded certiorari jurisdiction20 of this Court reflects, includes the power to "determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."21 In the present case, petitioner invokes the Courts expanded certiorari jurisdiction, using the special civil actions of certiorari and prohibition as procedural vehicles. The Court finds it well-within its power to determine whether public respondent committed a violation of the Constitution or gravely abused its discretion in the exercise of its functions and prerogatives that could translate as lack or excess of jurisdiction, which would require corrective measures from the Court. Indubitably, the Court is not asserting its ascendancy over the Legislature in this instance, but simply upholding the supremacy of the Constitution as the repository of the sovereign will.22 Respondents do not seriously contest all the essential requisites for the exercise of judicial review, as they only assert that the petition is premature and not yet ripe for adjudication since petitioner has at her disposal a plain, speedy and adequate remedy in the course of the proceedings before public respondent. Public respondent argues that when petitioner filed the present petition23 on September 13, 2010, it had not gone beyond the determination of the sufficiency of form and substance of the two complaints. An aspect of the "case-or-controversy" requirement is the requisite of ripeness.24 The question of ripeness is especially relevant in light of the direct, adverse effect on an individual by the challenged conduct.25 In the present petition, there is no doubt that questions on, inter alia, the validity of the simultaneous referral of the two complaints and on the need to publish as a mode of promulgating the Rules of Procedure in Impeachment Proceedings of the House (Impeachment Rules) present constitutional vagaries which call for immediate interpretation. The unusual act of simultaneously referring to public respondent two impeachment complaints presents a novel situation to invoke judicial

power. Petitioner cannot thus be considered to have acted prematurely when she took the cue from the constitutional limitation that only one impeachment proceeding should be initiated against an impeachable officer within a period of one year. And so the Court proceeds to resolve the substantive issue whether public respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its two assailed Resolutions. Petitioner basically anchors her claim on alleged violation of the due process clause (Art. III, Sec. 1) and of the oneyear bar provision (Art. XI, Sec 3, par. 5) of the Constitution. Due process of law Petitioner alleges that public respondents chairperson, Representative Niel Tupas, Jr. (Rep. Tupas), is the subject of an investigation she is conducting, while his father, former Iloilo Governor Niel Tupas, Sr., had been charged by her with violation of the Anti-Graft and Corrupt Practices Act before the Sandiganbayan. To petitioner, the actions taken by her office against Rep. Tupas and his father influenced the proceedings taken by public respondent in such a way that bias and vindictiveness played a big part in arriving at the finding of sufficiency of form and substance of the complaints against her. The Court finds petitioners allegations of bias and vindictiveness bereft of merit, there being hardly any indication thereof. Mere suspicion of partiality does not suffice.26 The act of the head of a collegial body cannot be considered as that of the entire body itself. So GMCR, Inc. v. Bell Telecommunications Phils.27 teaches: First. We hereby declare 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. Corollarily, the vote alone of the chairman of the commission, as in this case, the vote of Commissioner Kintanar, absent the required concurring vote coming from the rest of the membership of the commission to at least arrive at a majority decision, is not sufficient to legally render an NTC order,

resolution or decision. Simply put, Commissioner Kintanar is not the National Telecommunications Commission. He alone does not speak and in behalf of the NTC. The NTC acts through a three-man body x x x. 28 In the present case, Rep. Tupas, public respondent informs, did not, in fact, vote and merely presided over the proceedings when it decided on the sufficiency of form and substance of the complaints.29 Even petitioners counsel conceded during the oral arguments that there are no grounds to compel the inhibition of Rep. Tupas. JUSTICE CUEVAS: Well, the Committee is headed by a gentleman who happened to be a respondent in the charges that the Ombudsman filed. In addition to that[,] his father was likewise a respondent in another case. How can he be expected to act with impartiality, in fairness and in accordance with law under that matter, he is only human we grant him that benefit. JUSTICE MORALES: Is he a one-man committee? JUSTICE CUEVAS: He is not a one-man committee, Your Honor, but he decides. JUSTICE MORALES: Do we presume good faith or we presume bad faith? JUSTICE CUEVAS: We presume that he is acting in good faith, Your Honor, but then (interrupted) JUSTICE MORALES: So, that he was found liable for violation of the Anti Graft and Corrupt

Practices Act, does that mean that your client will be deprived of due process of law? JUSTICE CUEVAS: No, what we are stating, Your Honor, is that expectation of a client goes with the Ombudsman, which goes with the element of due process is the lack of impartiality that may be expected of him. JUSTICE MORALES: But as you admitted the Committee is not a one-man committee? JUSTICE CUEVAS: That is correct, Your Honor. JUSTICE MORALES: So, why do you say then that there is a lack of impartiality? JUSTICE CUEVAS: Because if anything before anything goes (sic) he is the presiding officer of the committee as in this case there were objections relative to the existence of the implementing rules not heard, there was objection made by Congressman Golez to the effect that this may give rise to a constitutional crisis. JUSTICE MORALES: That called for a voluntary inhibition. Is there any law or rule you can cite which makes it mandatory for the chair of the committee to inhibit given that he had previously been found liable for violation of a law[?] JUSTICE CUEVAS: There is nothing, Your Honor. In our jurisprudence which deals with the situation whereby with that background as the material or pertinent antecedent that there could be no violation of the right of the petitioner to due process. What is the effect of notice, hearing if the judgment cannot come from an impartial adjudicator.30 (emphasis and

underscoring supplied) Petitioner contends that the "indecent and precipitate haste" of public respondent in finding the two complaints sufficient in form and substance is a clear indication of bias, she pointing out that it only took public respondent five minutes to arrive thereat.
lawphi1

An abbreviated pace in the conduct of proceedings is not per se an indication of bias, however. So Santos-Concio v. Department of Justice31 holds: Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions. For ones prompt dispatch may be anothers undue haste. The orderly administration of justice remains as the paramount and constant consideration, with particular regard of the circumstances peculiar to each case. The presumption of regularity includes the public officers official actuations in all phases of work. Consistent with such presumption, it was incumbent upon petitioners to present contradictory evidence other than a mere tallying of days or numerical calculation. This, petitioners failed to discharge. The swift completion of the Investigating Panels initial task cannot be relegated as shoddy or shady without discounting the presumably regular performance of not just one but five state prosecutors.32 (italics in the original; emphasis and underscoring supplied) Petitioner goes on to contend that her participation in the determination of sufficiency of form and substance was indispensable. As mandated by the Impeachment Rules, however, and as, in fact, conceded by petitioners counsel, the participation of the impeachable officer starts with the filing of an answer. JUSTICE MORALES: Is it not that the Committee should first determine that there is sufficiency in form and substance before she is asked to file her answer (interrupted)

JUSTICE CUEVAS: That is correct, Your Honor. JUSTICE MORALES: During which she can raise any defenses she can assail the regularity of the proceedings and related irregularities? JUSTICE CUEVAS: Yes. We are in total conformity and in full accord with that statement, Your Honor, because it is only after a determination that the complaint is sufficient in form and substance that a complaint may be filed, Your Honor, without that but it may be asked, how is not your action premature, Your Honor, our answer is- no, because of the other violations involved and that is (interrupted).33 (emphasis and underscoring supplied) Rule III(A) of the Impeachment Rules of the 15th Congress reflects the impeachment procedure at the Committee-level, particularly Section 534 which denotes that petitioners initial participation in the impeachment proceedings the opportunity to file an Answer starts after the Committee on Justice finds the complaint sufficient in form and substance. That the Committee refused to accept petitioners motion for reconsideration from its finding of sufficiency of form of the impeachment complaints is apposite, conformably with the Impeachment Rules. Petitioner further claims that public respondent failed to ascertain the sufficiency of form and substance of the complaints on the basis of the standards set by the Constitution and its own Impeachment Rules.35 The claim fails. The determination of sufficiency of form and substance of an impeachment complaint is an exponent of the express constitutional grant of rule-making powers of the House of Representatives which committed such determinative function to public respondent. In the discharge of that power and in the exercise of its discretion, the

House has formulated determinable standards as to the form and substance of an impeachment complaint. Prudential considerations behoove the Court to respect the compliance by the House of its duty to effectively carry out the constitutional purpose, absent any contravention of the minimum constitutional guidelines. Contrary to petitioners position that the Impeachment Rules do not provide for comprehensible standards in determining the sufficiency of form and substance, the Impeachment Rules are clear in echoing the constitutional requirements and providing that there must be a "verified complaint or resolution,"36 and that the substance requirement is met if there is "a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee."37 Notatu dignum is the fact that it is only in the Impeachment Rules where a determination of sufficiency of form and substance of an impeachment complaint is made necessary. This requirement is not explicitly found in the organic law, as Section 3(2), Article XI of the Constitution basically merely requires a "hearing."38 In the discharge of its constitutional duty, the House deemed that a finding of sufficiency of form and substance in an impeachment complaint is vital "to effectively carry out" the impeachment process, hence, such additional requirement in the Impeachment Rules. Petitioner urges the Court to look into the narration of facts constitutive of the offenses vis--vis her submissions disclaiming the allegations in the complaints. This the Court cannot do. Francisco instructs that this issue would "require the 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 legislature. Such an intent is clear from the deliberations of the Constitutional Commission. x x x x Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power[.]" 39 Worse, petitioner urges the Court to make a preliminary assessment of certain grounds raised, upon a hypothetical admission of the facts alleged in the complaints, which involve matters of defense.

In another vein, petitioner, pursuing her claim of denial of due process, questions the lack of or, more accurately, delay in the publication of the Impeachment Rules. To recall, days after the 15th Congress opened on July 26, 2010 or on August 3, 2010, public respondent provisionally adopted the Impeachment Rules of the 14th Congress and thereafter published on September 2, 2010 its Impeachment Rules, admittedly substantially identical with that of the 14th Congress, in two newspapers of general circulation.40 Citing Taada v. Tuvera,41 petitioner contends that she was deprived of due process since the Impeachment Rules was published only on September 2, 2010 a day after public respondent ruled on the sufficiency of form of the complaints. She likewise tacks her contention on Section 3(8), Article XI of the Constitution which directs that "Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." Public respondent counters that "promulgation" in this case refers to "the publication of rules in any medium of information, not necessarily in the Official Gazette or newspaper of general circulation."42 Differentiating Neri v. Senate Committee on Accountability of Public Officers and Investigations43 which held that the Constitution categorically requires publication of the rules of procedure in legislative inquiries, public respondent explains that the Impeachment Rules is intended to merely enable Congress to effectively carry out the purpose of Section 3(8), Art. XI of Constitution. Blacks Law Dictionary broadly defines promulgate as To publish; to announce officially; to make public as important or obligatory. The formal act of announcing a statute or rule of court. An administrative order that is given to cause an agency law or regulation to become known or obligatory.44 (emphasis supplied) While "promulgation" would seem synonymous to "publication," there is a statutory difference in their usage. The Constitution notably uses the word "promulgate" 12 times.45 A

number of those instances involves the promulgation of various rules, reports and issuances emanating from Congress, this Court, the Office of the Ombudsman as well as other constitutional offices. To appreciate the statutory difference in the usage of the terms "promulgate" and "publish," the case of the Judiciary is in point. In promulgating rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the Court has invariably required the publication of these rules for their effectivity. As far as promulgation of judgments is concerned, however, promulgation means "the delivery of the decision to the clerk of court for filing and publication."46 Section 4, Article VII of the Constitution contains a similar provision directing Congress to "promulgate its rules for the canvassing of the certificates" in the presidential and vice presidential elections. Notably, when Congress approved its canvassing rules for the May 14, 2010 national elections on May 25, 2010,47 it did not require the publication thereof for its effectivity. Rather, Congress made the canvassing rules effective upon its adoption. In the case of administrative agencies, "promulgation" and "publication" likewise take on different meanings as they are part of a multi-stage procedure in quasi-legislation. As detailed in one case,48 the publication of implementing rules occurs after their promulgation or adoption. Promulgation must thus be used in the context in which it is generally understoodthat is, to make known. Generalia verba sunt generaliter inteligencia. What is generally spoken shall be generally understood. Between the restricted sense and the general meaning of a word, the general must prevail unless it was clearly intended that the restricted sense was to be used.49 Since the Constitutional Commission did not restrict "promulgation" to "publication," the former should be understood to have been used in its general sense. It is within the discretion of Congress to determine on how to promulgate its Impeachment Rules, in much the same way that the Judiciary is permitted to determine that to promulgate a decision means to deliver the decision to the clerk of court for filing

and publication. It is not for this Court to tell a co-equal branch of government how to promulgate when the Constitution itself has not prescribed a specific method of promulgation. The Court is in no position to dictate a mode of promulgation beyond the dictates of the Constitution. Publication in the Official Gazette or a newspaper of general circulation is but one avenue for Congress to make known its rules. Jurisprudence emphatically teaches that x x x in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the legality of the acts of the Senate relative thereto. On grounds of respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work. In the words of Justice Florentino P. Feliciano, this Court is of the opinion that where no specific, operable norms and standards are shown to exist, then the legislature must be given a real and effective opportunity to fashion and promulgate as well as to implement them, before the courts may intervene.50 (italics in the original; emphasis and underscoring supplied; citations omitted) Had the Constitution intended to have the Impeachment Rules published, it could have stated so as categorically as it did in the case of the rules of procedure in legislative inquiries, per Neri. Other than "promulgate," there is no other single formal term in the English language to appropriately refer to an issuance without need of it being published. IN FINE, petitioner cannot take refuge in Neri since inquiries in aid of legislation under Section 21, Article VI of the Constitution is the sole instance in the Constitution where there is a categorical directive to duly publish a set of rules of procedure. Significantly notable in Neri is that with respect to the issue of publication, the Court anchored its ruling on the 1987 Constitutions directive, without any reliance on or reference to the 1986 case of Taada v. Tuvera.51 Taada naturally could neither have interpreted a forthcoming 1987 Constitution nor had kept a tight rein on the Constitutions intentions as expressed

through the allowance of either a categorical term or a general sense of making known the issuances. From the deliberations of the Constitutional Commission, then Commissioner, now retired Associate Justice Florenz Regalado intended Section 3(8), Article XI to be the vehicle for the House to fill the gaps in the impeachment process. MR. REGALADO. Mr. Presiding Officer, I have decided to put in an additional section because, for instance, under Section 3 (2), there is mention of indorsing a verified complaint for impeachment by any citizen alleging ultimate facts constituting a ground or grounds for impeachment. In other words, it is just like a provision in the rules of court. Instead, I propose that this procedural requirement, like indorsement of a complaint by a citizen to avoid harassment or crank complaints, could very well be taken up in a new section 4 which shall read as follows: THE CONGRESS SHALL PROMULGATE ITS RULES ON IMPEACHMENT TO EFFECTIVELY CARRY OUT THE PURPOSES THEREOF. I think all these other procedural requirements could be taken care of by the Rules of Congress.52 (emphasis and underscoring supplied) The discussion clearly rejects the notion that the impeachment provisions are not self-executing. Section 3(8) does not, in any circumstance, operate to suspend the entire impeachment mechanism which the Constitutional Commission took pains in designing even its details. As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. That is

why the prevailing view is, as it has always been, that . . . in case of doubt, the Constitution should be considered selfexecuting rather than non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute.53 (emphasis and underscoring supplied) Even assuming arguendo that publication is required, lack of it does not nullify the proceedings taken prior to the effectivity of the Impeachment Rules which faithfully comply with the relevant selfexecuting provisions of the Constitution. Otherwise, in cases where impeachment complaints are filed at the start of each Congress, the mandated periods under Section 3, Article XI of the Constitution would already run or even lapse while awaiting the expiration of the 15-day period of publication prior to the effectivity of the Impeachment Rules. In effect, the House would already violate the Constitution for its inaction on the impeachment complaints pending the completion of the publication requirement. Given that the Constitution itself states that any promulgation of the rules on impeachment is aimed at "effectively carry[ing] out the purpose" of impeachment proceedings, the Court finds no grave abuse of discretion when the House deemed it proper to provisionally adopt the Rules on Impeachment of the 14th Congress, to meet the exigency in such situation of early filing and in keeping with the "effective" implementation of the "purpose" of the impeachment provisions. In other words, the provisional adoption of the previous Congress Impeachment Rules is within the power of the House to promulgate its rules on impeachment to effectively carry out the avowed purpose. Moreover, the rules on impeachment, as contemplated by the framers of the Constitution, merely aid or supplement the procedural aspects of impeachment. Being procedural in nature, they may be given retroactive application to pending actions. "It is axiomatic that the

retroactive application of procedural laws does not violate any right of a person who may feel that he is adversely affected, nor is it constitutionally objectionable. The reason for this is that, as a general rule, no vested right may attach to, nor arise from, procedural laws."54 In the present case, petitioner fails to allege any impairment of vested rights. It bears stressing that, unlike the process of inquiry in aid of legislation where the rights of witnesses are involved, impeachment is primarily for the protection of the people as a body politic, and not for the punishment of the offender.55 Even Neri concedes that the unpublished rules of legislative inquiries were not considered null and void in its entirety. Rather, x x x [o]nly those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective.56 (emphasis and underscoring supplied) Petitioner in fact does not deny that she was fully apprised of the proper procedure. She even availed of and invoked certain provisions57 of the Impeachment Rules when she, on September 7, 2010, filed the motion for reconsideration and later filed the present petition. The Court thus finds no violation of the due process clause. The one-year bar rule Article XI, Section 3, paragraph (5) of the Constitution reads: "No impeachment proceedings shall be initiated against the same official more than once within a period of one year." Petitioner reckons the start of the one-year bar from the filing of the first impeachment complaint against her on July 22, 2010 or four days before the opening on July 26, 2010 of the 15th Congress. She posits that within one year from July 22, 2010, no second impeachment complaint may be accepted and referred to public respondent. On the other hand, public respondent, respondent Reyes group and

respondent-intervenor submit that the initiation starts with the filing of the impeachment complaint and ends with the referral to the Committee, following Francisco, but venture to alternatively proffer that the initiation ends somewhere between the conclusion of the Committee Report and the transmittal of the Articles of Impeachment to the Senate. Respondent Baraquel group, meanwhile, essentially maintains that under either the prevailing doctrine or the parties interpretation, its impeachment complaint could withstand constitutional scrutiny. Contrary to petitioners asseveration, Francisco58 states that the term "initiate" means to file the complaint and take initial action on it.59 The initiation starts with the filing of the complaint which must be accompanied with an action to set the complaint moving. It refers to the filing of the impeachment complaint coupled with Congress taking initial action of said complaint. The initial action taken by the House on the complaint is the referral of the complaint to the Committee on Justice. Petitioner misreads the remark of Commissioner Joaquin Bernas, S.J. that "no second verified impeachment may be accepted and referred to the Committee on Justice for action"60 which contemplates a situation where a first impeachment complaint had already been referred. Bernas and Regalado, who both acted as amici curiae in Francisco, affirmed that the act of initiating includes the act of taking initial action on the complaint. 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-third61 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.62 (emphasis and underscoring supplied) The Court, in Francisco, thus found that the assailed provisions of the 12th Congress Rules of Procedure in Impeachment Proceedings Sections 1663 and 1764 of Rule V thereof "clearly contravene Section 3(5) of Article XI since they g[a]ve the term initiate a meaning different from filing and referral."65 Petitioner highlights certain portions of Francisco which delve on the relevant records of the Constitutional Commission, particularly Commissioner Maambongs statements66 that the initiation starts with the filing of the complaint. Petitioner fails to consider the verb "starts" as the operative word. Commissioner Maambong was all too keen to stress that the filing of the complaint indeed starts the initiation and that the Houses action on the committee report/resolution is not part of that initiation phase. Commissioner Maambong saw the need "to be very technical about this,"67 for certain exchanges in the Constitutional Commission deliberations loosely used the term, as shown in the following exchanges. MR. DAVIDE. That is for conviction, but not for initiation. Initiation of impeachment proceedings still requires a vote of one-fifth of the membership of the House under the 1935 Constitution. MR. MONSOD. A two-thirds vote of the membership of the House is required to initiate proceedings. MR. DAVIDE. No. for initiation of impeachment proceedings, only one-fifth vote of the membership of the House is required; for conviction, a two-thirds vote of the membership is required. xxxx MR. DAVIDE. However, if we allow one-fifth of the membership of the legislature to overturn a report of the committee, we have here Section 3 (4) which reads: No impeachment proceedings shall be initiated against the same

official more than once within a period of one year. So, necessarily, under this particular subsection, we will, in effect, disallow one-fifth of the members of the National Assembly to revive an impeachment move by an individual or an ordinary Member. MR. ROMULO. Yes. May I say that Section 3 (4) is there to look towards the possibility of a very liberal impeachment proceeding. Second, we were ourselves struggling with that problem where we are faced with just a verified complaint rather than the signatures of one-fifth, or whatever it is we decide, of the Members of the House. So whether to put a period for the Committee to report, whether we should not allow the Committee to overrule a mere verified complaint, are some of the questions we would like to be discussed. MR. DAVIDE. We can probably overrule a rejection by the Committee by providing that it can be overturned by, say, one-half or a majority, or one-fifth of the members of the legislature, and that such overturning will not amount to a refiling which is prohibited under Section 3 (4). Another point, Madam President. x x x68 (emphasis and underscoring supplied) An apparent effort to clarify the term "initiate" was made by Commissioner Teodulo Natividad: MR. NATIVIDAD. How many votes are needed to initiate? MR. BENGZON. One-third. MR. NATIVIDAD. To initiate is different from to impeach; to impeach is different from to convict. To impeach means to file the case before the Senate. MR. REGALADO. When we speak of "initiative," we refer here to the Articles of Impeachment. MR. NATIVIDAD. So, that is the impeachment itself, because when we impeach, we are charging him with the Articles of Impeachment.

That is my understanding.69 (emphasis and underscoring supplied) Capping these above-quoted discussions was the explanation of Commissioner Maambong delivered on at least two occasions: [I] 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 the 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. Thank you, Mr. Presiding Officer.70 (italics in the original; emphasis and underscoring supplied) [II] 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 with 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 its 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 complaint of onethird 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.71 (emphasis and underscoring supplied) To the next logical question of what ends or completes the initiation, Commissioners Bernas and Regalado lucidly explained that the filing of the complaint must be accompanied by the referral to the Committee on Justice, which is the action that sets the complaint moving. Francisco cannot be any clearer in pointing out the material dates. 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.72 (emphasis, italics and underscoring supplied) These clear pronouncements notwithstanding, petitioner posits that the date of referral was considered irrelevant in Francisco. She submits that referral could not be the reckoning point of initiation because "something prior to that had already been done,"73 apparently citing Bernas discussion. The Court cannot countenance any attempt at obscurantism. What the cited discussion was rejecting was the view that the Houses action on the committee report initiates the impeachment proceedings. It did not state that to determine the initiating step, absolutely nothing prior to it must be done. Following petitioners line of reasoning, the verification of the complaint or the endorsement by a member of the House steps done prior to the filing would already initiate the impeachment proceedings. Contrary to petitioners emphasis on impeachment complaint, what the Constitution mentions is impeachment "proceedings." Her reliance on the singular tense of the word "complaint"74 to denote the limit prescribed by the Constitution goes against the basic rule of statutory construction that a word covers its enlarged and plural sense.75 The Court, of course, does not downplay the importance of an impeachment complaint, for it is the matchstick that kindles the candle of impeachment proceedings. The filing of an impeachment complaint is like the lighting of a matchstick. Lighting the matchstick alone, however, cannot light up the candle, unless the lighted

matchstick reaches or torches the candle wick. Referring the complaint to the proper committee ignites the impeachment proceeding. With a simultaneous referral of multiple complaints filed, more than one lighted matchsticks light the candle at the same time. What is important is that there should only be ONE CANDLE that is kindled in a year, such that once the candle starts burning, subsequent matchsticks can no longer rekindle the candle. A restrictive interpretation renders the impeachment mechanism both illusive and illusory. For one, it puts premium on senseless haste. Petitioners stance suggests that whoever files the first impeachment complaint exclusively gets the attention of Congress which sets in motion an exceptional once-a-year mechanism wherein government resources are devoted. A prospective complainant, regardless of ill motives or best intentions, can wittingly or unwittingly desecrate the entire process by the expediency of submitting a haphazard complaint out of sheer hope to be the first in line. It also puts to naught the effort of other prospective complainants who, after diligently gathering evidence first to buttress the case, would be barred days or even hours later from filing an impeachment complaint. Placing an exceedingly narrow gateway to the avenue of impeachment proceedings turns its laudable purpose into a laughable matter. One needs only to be an early bird even without seriously intending to catch the worm, when the process is precisely intended to effectively weed out "worms" in high offices which could otherwise be ably caught by other prompt birds within the ultra-limited season. Moreover, the first-to-file scheme places undue strain on the part of the actual complainants, injured party or principal witnesses who, by mere happenstance of an almost always unforeseeable filing of a first impeachment complaint, would be brushed aside and restricted from directly participating in the impeachment process. Further, prospective complainants, along with their counsel and members of the House of Representatives who sign, endorse and file subsequent impeachment complaints against the same impeachable officer run the risk of violating the Constitution since they would have

already initiated a second impeachment proceeding within the same year. Virtually anybody can initiate a second or third impeachment proceeding by the mere filing of endorsed impeachment complaints. Without any public notice that could charge them with knowledge, even members of the House of Representatives could not readily ascertain whether no other impeachment complaint has been filed at the time of committing their endorsement. The question as to who should administer or pronounce that an impeachment proceeding has been initiated rests also on the body that administers the proceedings prior to the impeachment trial. As gathered from Commissioner Bernas disquisition76 in Francisco, a proceeding which "takes place not in the Senate but in the House"77 precedes the bringing of an impeachment case to the Senate. In fact, petitioner concedes that the initiation of impeachment proceedings is within the sole and absolute control of the House of Representatives.78 Conscious of the legal import of each step, the House, in taking charge of its own proceedings, must deliberately decide to initiate an impeachment proceeding, subject to the time frame and other limitations imposed by the Constitution. This chamber of Congress alone, not its officers or members or any private individual, should own up to its processes. The Constitution did not place the power of the "final say" on the lips of the House Secretary General who would otherwise be calling the shots in forwarding or freezing any impeachment complaint. Referral of the complaint to the proper committee is not done by the House Speaker alone either, which explains why there is a need to include it in the Order of Business of the House. It is the House of Representatives, in public plenary session, which has the power to set its own chamber into special operation by referring the complaint or to otherwise guard against the initiation of a second impeachment proceeding by rejecting a patently unconstitutional complaint. Under the Rules of the House, a motion to refer is not among those motions that shall be decided without debate, but any debate thereon is only made subject to the five-minute rule.79 Moreover, it is common parliamentary practice that a motion to refer a matter or question to a committee may be debated upon, not as to the merits thereof, but only as to the propriety of the referral.80 With respect to complaints for

impeachment, the House has the discretion not to refer a subsequent impeachment complaint to the Committee on Justice where official records and further debate show that an impeachment complaint filed against the same impeachable officer has already been referred to the said committee and the one year period has not yet expired, lest it becomes instrumental in perpetrating a constitutionally prohibited second impeachment proceeding. Far from being mechanical, before the referral stage, a period of deliberation is afforded the House, as the Constitution, in fact, grants a maximum of three session days within which to make the proper referral. As mentioned, one limitation imposed on the House in initiating an impeachment proceeding deals with deadlines. The Constitution states that "[a] verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or 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." In the present case, petitioner failed to establish grave abuse of discretion on the allegedly "belated" referral of the first impeachment complaint filed by the Baraquel group. For while the said complaint was filed on July 22, 2010, there was yet then no session in Congress. It was only four days later or on July 26, 2010 that the 15th Congress opened from which date the 10-day session period started to run. When, by Memorandum of August 2, 2010, Speaker Belmonte directed the Committee on Rules to include the complaint in its Order of Business, it was well within the said 10-day session period.81 There is no evident point in rushing at closing the door the moment an impeachment complaint is filed. Depriving the people (recall that impeachment is primarily for the protection of the people as a body politic) of reasonable access to the limited political vent simply prolongs the agony and frustrates the collective rage of an entire citizenry whose trust has been betrayed by an impeachable officer. It shortchanges the promise of reasonable opportunity to remove an impeachable officer through the mechanism enshrined in the Constitution.

But neither does the Court find merit in respondents alternative contention that the initiation of the impeachment proceedings, which sets into motion the one-year bar, should include or await, at the earliest, the Committee on Justice report. To public respondent, the reckoning point of initiation should refer to the disposition of the complaint by the vote of at least one-third (1/3) of all the members of the House.82 To the Reyes group, initiation means the act of transmitting the Articles of Impeachment to the Senate.83 To respondent-intervenor, it should last until the Committee on Justices recommendation to the House plenary.84 The Court, in Francisco, rejected a parallel thesis in which a related proposition was inputed in the therein assailed provisions of the Impeachment Rules of the 12th Congress. The present case involving an impeachment proceeding against the Ombudsman offers no cogent reason for the Court to deviate from what was settled in Francisco that dealt with the impeachment proceeding against the then Chief Justice. To change the reckoning point of initiation on no other basis but to accommodate the socio-political considerations of respondents does not sit well in a court of law. x x x We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner. This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process: It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed

administration of justice in the courts.85 As pointed out in Francisco, the impeachment proceeding is not 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."86 Allowing an expansive construction of the term "initiate" beyond the act of referral allows the unmitigated influx of successive complaints, each having their own respective 60-session-day period of disposition from referral. Worse, the Committee shall conduct overlapping hearings until and unless the disposition of one of the complaints ends with the affirmance of a resolution for impeachment or the overriding87 of a contrary resolution (as espoused by public respondent), or the House transmits the Articles of Impeachment (as advocated by the Reyes group),88 or the Committee on Justice concludes its first report to the House plenary regardless of the recommendation (as posited by respondent-intervenor). Each of these scenarios runs roughshod the very purpose behind the constitutionally imposed one-year bar. Opening the floodgates too loosely would disrupt the series of steps operating in unison under one proceeding. The Court does not lose sight of the salutary reason of confining only one impeachment proceeding in a year. Petitioner concededly cites Justice Adolfo Azcunas separate opinion that concurred with the Francisco ruling.89 Justice Azcuna stated that the purpose of the oneyear bar is two-fold: "to prevent undue or too frequent harassment; and 2) to allow the legislature to do its principal task [of] legislation," with main reference to the records of the Constitutional Commission, that reads: MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking. Impeachment proceedings take a lot of

time. And if we allow multiple impeachment charges on the same individual to take place, the legislature will do nothing else but that.90 (underscoring supplied) It becomes clear that the consideration behind the intended limitation refers to the element of time, and not the number of complaints. The impeachable officer should defend himself in only one impeachment proceeding, so that he will not be precluded from performing his official functions and duties. Similarly, Congress should run only one impeachment proceeding so as not to leave it with little time to attend to its main work of law-making. The doctrine laid down in Francisco that initiation means filing and referral remains congruent to the rationale of the constitutional provision. Petitioner complains that an impeachable officer may be subjected to harassment by the filing of multiple impeachment complaints during the intervening period of a maximum of 13 session days between the date of the filing of the first impeachment complaint to the date of referral. As pointed out during the oral arguments91 by the counsel for respondent-intervenor, the framework of privilege and layers of protection for an impeachable officer abound. The requirements or restrictions of a one-year bar, a single proceeding, verification of complaint, endorsement by a House member, and a finding of sufficiency of form and substance all these must be met before bothering a respondent to answer already weigh heavily in favor of an impeachable officer. Aside from the probability of an early referral and the improbability of inclusion in the agenda of a complaint filed on the 11th hour (owing to pre-agenda standard operating procedure), the number of complaints may still be filtered or reduced to nil after the Committee decides once and for all on the sufficiency of form and substance. Besides, if only to douse petitioners fear, a complaint will not last the primary stage if it does not have the stated preliminary requisites. To petitioner, disturbance of her performance of official duties and the deleterious effects of bad publicity are enough oppression. Petitioners claim is based on the premise that the exertion of time,

energy and other resources runs directly proportional to the number of complaints filed. This is non sequitur. What the Constitution assures an impeachable officer is not freedom from arduous effort to defend oneself, which depends on the qualitative assessment of the charges and evidence and not on the quantitative aspect of complaints or offenses. In considering the side of the impeachable officers, the Constitution does not promise an absolutely smooth ride for them, especially if the charges entail genuine and grave issues. The framers of the Constitution did not concern themselves with the media tolerance level or internal disposition of an impeachable officer when they deliberated on the impairment of performance of official functions. The measure of protection afforded by the Constitution is that if the impeachable officer is made to undergo such ride, he or she should be made to traverse it just once. Similarly, if Congress is called upon to operate itself as a vehicle, it should do so just once. There is no repeat ride for one full year. This is the whole import of the constitutional safeguard of one-year bar rule. Applicability of the Rules on Criminal Procedure On another plane, petitioner posits that public respondent gravely abused its discretion when it disregarded its own Impeachment Rules, the same rules she earlier chastised. In the exercise of the power to promulgate rules "to effectively carry out" the provisions of Section 3, Article XI of the Constitution, the House promulgated the Impeachment Rules, Section 16 of which provides that "the Rules of Criminal Procedure under the Rules of Court shall, as far as practicable, apply to impeachment proceedings before the House." Finding that the Constitution, by express grant, permits the application of additional adjective rules that Congress may consider in effectively carrying out its mandate, petitioner either asserts or rejects two procedural devices. First is on the "one offense, one complaint" rule. By way of reference to Section 16 of the Impeachment Rules, petitioner invokes the application of Section 13, Rule 110 of the Rules on Criminal Procedure which states that "[a] complaint or information must charge

only one offense, except when the law prescribes a single punishment for various offenses." To petitioner, the two impeachment complaints are insufficient in form and substance since each charges her with both culpable violation of the Constitution and betrayal of public trust. She concludes that public respondent gravely abused its discretion when it disregarded its own rules. Petitioner adds that heaping two or more charges in one complaint will confuse her in preparing her defense; expose her to the grave dangers of the highly political nature of the impeachment process; constitute a whimsical disregard of certain rules; impair her performance of official functions as well as that of the House; and prevent public respondent from completing its report within the deadline. Public respondent counters that there is no requirement in the Constitution that an impeachment complaint must charge only one offense, and the nature of impeachable offenses precludes the application of the above-said Rule on Criminal Procedure since the broad terms cannot be defined with the same precision required in defining crimes. It adds that the determination of the grounds for impeachment is an exercise of political judgment, which issue respondent-intervenor also considers as non-justiciable, and to which the Baraquel group adds that impeachment is a political process and not a criminal prosecution, during which criminal prosecution stage the complaint or information referred thereto and cited by petitioner, unlike an impeachment complaint, must already be in the name of the People of the Philippines. The Baraquel group deems that there are provisions92 outside the Rules on Criminal Procedure that are more relevant to the issue. Both the Baraquel and Reyes groups point out that even if Sec. 13 of Rule 110 is made to apply, petitioners case falls under the exception since impeachment prescribes a single punishment removal from office and disqualification to hold any public office even for various offenses. Both groups also observe that petitioner concededly and admittedly was not keen on pursuing this issue during the oral arguments.

Petitioners claim deserves scant consideration. Without going into the effectiveness of the suppletory application of the Rules on Criminal Procedure in carrying out the relevant constitutional provisions, which prerogative the Constitution vests on Congress, and without delving into the practicability of the application of the one offense per complaint rule, the initial determination of which must be made by the House93 which has yet to pass upon the question, the Court finds that petitioners invocation of that particular rule of Criminal Procedure does not lie. Suffice it to state that the Constitution allows the indictment for multiple impeachment offenses, with each charge representing an article of impeachment, assembled in one set known as the "Articles of Impeachment."94 It, therefore, follows that an impeachment complaint need not allege only one impeachable offense. The second procedural matter deals with the rule on consolidation. In rejecting a consolidation, petitioner maintains that the Constitution allows only one impeachment complaint against her within one year. Records show that public respondent disavowed any immediate need to consolidate. Its chairperson Rep. Tupas stated that "[c]onsolidation depends on the Committee whether to consolidate[; c]onsolidation may come today or may come later on after determination of the sufficiency in form and substance," and that "for purposes of consolidation, the Committee will decide when is the time to consolidate[, a]nd if, indeed, we need to consolidate."95 Petitioners petition, in fact, initially describes the consolidation as merely "contemplated."96 Since public respondent, whether motu proprio or upon motion, did not yet order a consolidation, the Court will not venture to make a determination on this matter, as it would be premature, conjectural or anticipatory.97 Even if the Court assumes petitioners change of stance that the two impeachment complaints were deemed consolidated,98 her claim that consolidation is a legal anomaly fails. Petitioners theory obviously springs from her "proceeding = complaint" equation which the Court already brushed aside.

WHEREFORE, the petition is DISMISSED. The assailed Resolutions of September 1, 2010 and September 7, 2010 of public respondent, the House of Representatives Committee on Justice, are NOT UNCONSTITUTIONAL. The Status Quo Ante Order issued by the Court on September 14, 2010 is LIFTED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice ANTONIO T. CARPIO Associate Justice

(No Part) PRESBITERO J. VEL Associate Jus ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO Associate Justice Associate Jus ARTURO D. BRION LUCAS P. BERS Associate Justice Associate Jus DIOSDADO M. PERALTA MARIANO C. DEL C Associate Justice Associate Jus ROBERTO A. ABAD MARTIN S. VILLAR Associate Justice Associate Jus JOSE PORTUGAL PEREZ JOSE CATRAL ME Associate Justice Associate Jus MARIA LOURDES P. A. SERENO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I hereby 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. RENATO C. CORONA Chief Justice Footnotes

No part. Rollo, pp. 93-111. Id. at 91-92. Id. at 561. Id. at 562. Id. at 136-169. Id. at 133-135. Id. at 563. Id. at 564. Rules of the House of Representatives, Rule IX, Sec. 27, par. (ss). Rollo, p. 565.

10

11

Journal of the House of Representatives (15th Congress), Journal No. 9, August 11, 2010 (rollo, p. 576).
12

As gathered from the pleadings, the two impeachment complaints are summarized as follows: First Complaint Second Complaint A. Betrayal of Public Trust: 1. The dismal and unconscionable low conviction rate of the Ombudsman from 2008 onwards

1. gross inexcusable delay in inves failure in prosecuting those involve anomalous Fertilizer Fund Scam de COA & Senate findings and the com against them.

2. The failure to take prompt and immediate 2. she did not prosecute Gen. Elise action against PGMA and FG with regard to the for violating BSP rules[12] that proh NBN-ZTE Broadband project taking out of the country of currenc of US$10,000 without declaring the

Phil. Customs, despite his admissio oath before the Senate Blue Ribbo 3. The delay in conducting and concluding an investigation on the death of Ensign Andrew Pestao aboard a Philippine Navy vessel 4. The decision upholding the legality of the arrest and detention of Rep. Hontiveros Baraquel by the PNP in March 2006. 5. The failure to conduct an investigation regarding the P1M dinner at Le Cirque Restaurant in New York B. Culpable Violation of the Constitution: 6. The repeated delays and failure to take action on cases impressed with public interest

3. gross inexcusable delay or inact in deliberate disregard of the Court and directive in Information Techno Foundation of the Philippines v. Co

4. through her repeated failure and delay in acting upon matters, she v 12 and Sec. 13, pars. 1-3 of Art. XI of Art. III of the Constitution which m prompt action and speedy dispositi

7. The refusal to grant ready access to public records like SALNW

13

Rollo, p. 261.

14

Id. at 262-263. Justices Carpio, Carpio Morales, and Sereno dissented; Justices Nachura, Leonardo-De Castro, Brion, and Mendoza were on official business.
15

Id. at 623-625. Reyes Groups Memorandum, pp. 5-8 (rollo, pp. 1064-1067). The Committees Memorandum, pp. 22-25 (id. at 915-918). 460 Phil. 830 (2003).

16

17

18

19

Id. at 889-892.

20

Id. at 883, which reads: "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[.]"
21

Constitution, Art. VIII, Sec. 1. Angara v. Electoral Commission, 63 Phil. 139, 158 (1936). The Committees Memorandum, p. 28 (rollo, p. 921).

22

23

24

Lozano v. Nograles, G.R. No. 187883, June 16, 2009, 589 SCRA 356, 358.
25

Guingona Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998). Casimiro v. Tandog, 498 Phil. 660, 667 (2005). G.R. No. 126496, April 30, 1997, 271 SCRA 790. Id. at 804. The Committees Memorandum, p. 36 (rollo, p. 929).

26

27

28

29

30

Transcript of Stenographic Notes (TSN), Oral Arguments, October 5, 2010, pp. 47-50.
31

G. R. No. 175057, January 29, 2008, 543 SCRA 70. Id. at 89-90. TSN, Oral Arguments, October 5, 2010, pp. 54-55.

32

33

34

Section 5. Notice to Respondents and Time to Plead. If the committee finds the complaint sufficient in form and substance, it shall immediately furnish the respondent(s) with a copy of the resolution and/or verified complaint, as the case may be, with written notice that he/she shall answer the complaint within ten (10) days

from receipt of notice thereof and serve a copy of the answer to the complainant(s). No motion to dismiss shall be allowed within the period to answer the complaint. The answer, which shall be under oath, may include affirmative defenses. If the respondent fails or refuses to file an answer within the reglementary period, he/she is deemed to have interposed a general denial to the complaint. Within three (3) days from receipt of the answer, the complainant may file a reply, serving a copy thereof to the respondent who may file a rejoinder within three (3) days from receipt of the reply, serving a copy thereof to the complainant. If the complainant fails to file a reply, all the material allegations in the answer are deemed controverted. Together with their pleadings, the parties shall file their affidavits or counter-affidavits, as the case may be, with their documentary evidence. Such affidavits or counteraffidavits shall be subscribed before the Chairperson of the Committee on Justice or the Secretary General. Notwithstanding all the foregoing, failure presenting evidence in support of his/her defenses. When there are more than one respondent, each shall be furnished with copy of the verified complaint from a Member of the House or a copy of the verified complaint from a private citizen together with the resolution of endorsement by a Member of the House of Representatives and a written notice to answer and in that case, reference to respondent in these Rules shall be understood as respondents. (underscoring supplied)
35

Petitioners Memorandum, pp. 66-73 (rollo, pp. 829-836). Vide Constitution, Art. XI, Sec. 3 (2).

36

37

Vide Rules of Procedure in Impeachment Proceedings, Rule III, Sec. 4.

38

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. (emphasis and underscoring supplied)
39

Francisco, Jr. v. House of Representatives, supra at 913. Philippine Daily Inquirer and Philippine Star. 230 Phil. 528 (1986). The Committees Memorandum, p. 58 (rollo, p. 951).

40

41

42

43

G.R. No. 180643, March 25, 2008, 549 SCRA 77; and September 4, 2008, 564 SCRA 152, 230, where the Court resolved: "The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. (emphasis in the original; underscoring supplied).
44

Blacks Law Dictionary (6th ed.), p. 1214.

45

The words "promulgate" and "promulgated" appear in the following sections: a) Preamble; b) Section 2 of Article V; c) Section 4 of Article VII (twice); d) Section 18 of Article VII; e) Section 5 of Article VIII; f) Section 6 of Article IX-A; g) Section 3 of Article IX-C; h) Section 2 of Article IX-D; i) Section 3 (8) of Article XI; j) Section 13 (8) of Article XI; and k) Section 8 of Article XIV.
46

Heritage Park Management Corp. v. CIAC, G.R. No. 148133, October 8, 2008, 568 SCRA 108, 120, citing Neria v. Commissioner on Immigration, 23 SCRA 806, 812.
47

<http://www.congress.gov.ph/download/elections2010/acr.signed.052 62010.pdf> [Last visited November 22, 2010].

48

National Association of Electricity Consumers for Reform v. Energy Regulatory Commission, G.R. No. 163935, February 2, 2006, 481 SCRA 480, 522.

49

Marcos v. Chief of Staff, AFP, 89 Phil. 239 (1951).

50

Sen. Defensor Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 300 (1998).
51

Supra note 41. II Record of the Constitutional Commission, p. 372 (July 28, 1986). Manila Prince Hotel v. GSIS, 335 Phil. 82, 102 (1997).

52

53

54

Cheng v. Sy, G.R. No. 174238, July 7, 2009, 592 SCRA 155, 164165.
55

De Leon And De Leon, Jr., The Law On Public Officers And Election Law (2003 ed.), p. 467, citing SINCO, Philippine Political Law, 11th ed. (1962), p. 374.
56

Neri v. Senate Committee on Accountability of Public Officers and Investigations, supra at 231.
57

1) Rule III, Section 4 thereof, on the finding of insufficiency in form, where petitioner prayed that the complaint be returned to the Secretary General within three session days with a written explanation of the insufficiency, who shall, in turn, return the same to the complainants together with the written explanation within three session days from receipt of the committee resolution. 2) Rule VII, Sec. 16 thereof, on the applicability of the rules of criminal procedure, where petitioner invokes the rule against duplicity of offense under Section 13, Rule 110 of the Rules of Court.
58

460 Phil. 830 (2003). Id. at 927. Francisco, supra at 932.

59

60

61

In case of a direct filing by at least one-third (1/3) of all the members of the House of Representatives under paragraph (4), Section 3, Article XI of the Constitution, there occurs an abbreviated

mode of initiation wherein the filing of the complaint and the taking of initial action are merged into a single act.
62

Francisco, supra at 932-933.

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.
63

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. (emphasis, underscoring and italics supplied)
64

Section 17. Bar Against Initiation of Impeachment Proceedings. Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. (emphasis, underscoring and italics supplied)
65

Francisco, supra at 933. Petitioners Memorandum, pp. 30-36 (rollo, pp. 793-799). II Record of the Constitutional Commission, p. 376 (July 28, 1986). Id. at 279-280. Id. at 374-375. Id. at 375-376.

66

67

68

69

70

71

Id. at 416. Francisco, supra at 940. Francisco, supra at 931. Section 3. x x x

72

73

74

(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. xxxx
75

Vide Gatchalian, etc. v. COMELEC, 146 Phil. 435, 442-443 (1970).

76

x x x An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a conclusion. x x x (Francisco, supra at 930-931).
77

Francisco, supra at 931. Petitioners Memorandum, p. 55 (rollo, p. 818). Rules of the House of Representatives, Rule XIII, Sec. 96.

78

79

80

<http://www.rulesonline.com/rror-05.htm> (visited: November 12, 2010), which further explains:

"The Object of the motion to refer to a standing or special committee is usually to enable a question to be more carefully investigated and put into better shape for the assembly to consider, than can be done in the assembly itself. Where an assembly is large and has a very large amount of business it is safer to have every main question go to a committee before final action on it is taken." (underscoring supplied).
81

Vide Rules of Procedure in Impeachment Proceedings, Rule II, Sec. 2. Note also that Section 3 (2), Article XI of the Constitution did not use the terms "calendar days" or "working days."
82

Respondent Committees Memorandum, p. 78 (rollo, p. 971). Respondent Reyes groups Memorandum, p. 26 (id. at 1085). Respondent-Intervenors Memorandum, p. 22 (id. at 1131).

83

84

85

Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010.

86

Francisco, supra at 931.

87

It was made of record that "whenever the body will override the resolution of impeachment of the Committee, it is understood that the body itself will prepare the Articles of Impeachment." [II Record of the Constitutional Commission, p. 416 (July 29, 1986)].
88

To respondents Committee and Reyes Group, any House action of dismissal of the complaint would not set in the one-year bar rule. Petitioners Memorandum, p. 38 (rollo, p. 801), citing the Separate Opinion of Justice Adolf Azcuna in Francisco.
89 90

II Record of the Constitutional Commission, p. 282 (July 26, 1986). TSN, October 12, 2010, p. 212. Citing Rules of Court, Rule 2, Sec. 5 & Rule 140, Sec. 1. Or by the Committee if the question is first raised therein.

91

92

93

94

This is not to say, however, that it must always contain two or more charges. In Santillon v. Miranda, et al, [121 Phil. 1351, 1355 (1965)], it was held that the plural can be understood to include the singular.
95

Petitioner cites that the Committee stated that "although two complaints were filed against petitioner, the two were in effect merged in one proceeding by their referral on the same day to the Committee." (TSN, Committee Hearing, September 1, 2010; rollo, p. 528-529).
96

Id. at 48.

97

Vide San Luis v. Rojas, G.R. No. 159127, March 3, 2008, 547 SCRA 345, 367.
98

The Committees Comment, p. 29 (rollo, p. 430).

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION CARPIO, J.: On 22 July 2010, Risa Hontiveros-Baraquel, Danilo D. Lim, Felipe Pestao and Evelyn Pestao (Baraquel, et al.) filed an impeachment complaint (First Complaint) against Ombudsman Ma. Merceditas N. Gutierrez (petitioner) based on the following grounds: I. Ombudsman Ma. Merceditas Navarro-Gutierrez betrayed the public trust. i. The dismal and unconscionably low conviction rates achieved by the Office of the Ombudsman from 2008 onward indicate a criminal level of incompetence amounting to grave dereliction of duty which constitutes a clear betrayal of public trust. ii. The unreasonable failure of the Ombudsman to take prompt and immediate action, in violation of its own rules of procedure, on the

complaints filed against various public officials including former President Gloria Macapagal-Arroyo, and her husband Jose Miguel T. Arroyo with regard to the NBN-ZTE Broadband Project constitutes betrayal of public trust. iii. The inexcusable delay of the Ombudsman in conducting and concluding its investigation into the wrongful death of Ensign Philip Andrew Pestao aboard a Philippine Navy vessel constitutes a betrayal of public trust. iii. The decision of the Ombudsman upholding the "legality" of the arrest and involuntary detention of then Representative Risa Hontiveros-Baraquel by the Philippine National Police in March 2006 in violation of the explicit rules provided in the Revised Penal Code and as established by jurisprudence constitutes a betrayal of public trust. iv. The failure of the Ombudsman to conduct an investigation into the possible wrongdoing or impropriety with regard to the P1,000,000.00 dinner for the Presidential Party at Le Cirque Restaurant in New York in August 2009 despite widespread media coverage and media clamor, and a formal letter from Representative Walden F. Bello calling for an inquiry constitutes betrayal of public trust. II. Ombudsman Ma. Merceditas Navarro-Gutierrez performed acts amounting to culpable violation of the Constitution. vi. The repeated failure of the Ombudsman to take prompt action on a wide variety of cases involving official abuse and corruption violates Article XI, Section 12 and Article III, Section 16 of the Constitution, which mandate prompt action and speedy disposition of cases. vii. The refusal of the Ombudsman to grant ready access to public records such as the Statement of Assets and Liabilities and Net Worth (SALN) required of all public officers under Republic Act No. 6713 constitutes a culpable violation of Article XI, Section 13(6) and Article III, Section 7 of the Constitution. The First Complaint was endorsed by AKBAYAN Representatives Kaka Bag-ao and Walden Bello. Party-list

On 3 August 2010, Renato Reyes, Secretary General of BAYAN, Mo. Mary John Mananzan of PAGBABAGO, Danilo Ramos, Secretary General of Kilusang Magbubukid ng Pilipinas, Atty. Edre Olalia, Acting Secretary General of National Union of People's Lawyers, Ferdinand Gaite, Chairperson of COURAGE, and James Terry Ridon, Chairperson of League of Filipino Students (Reyes, et al.) filed a Verified Impeachment Complaint (Second Complaint) against petitioner on the following grounds: I. Betrayal of Public Trust 1. Ombudsman Gutierrez committed betrayal of public trust through her gross inexcusable delay in investigating and failure in prosecuting any one of [those] involved on the anomalous transactions arising from the Fertilizer Fund Scam despite the blatant anomalous transactions revealed in the COA findings, Senate Committee Report 54 and the complaints filed with respondent on the "Fertilizer Scam." (2) Ombudsman Gutierrez committed betrayal of public trust when she did not prosecute Gen. Eliseo De la Paz for violating BSP Circular 98 (1995), as amended by BSP Circular 507 (2006), in relation to Republic Act 6713, which prohibits the taking out of the country of currency in excess of US $10,000.00 without declaring the same to the Philippine customs, despite the fact that Gen. Eliseo De la Paz publicly admitted under oath before the Senate Blue Ribbon Committee that he took out of the country currency in excess of US $ 10,000.00 without declaring the same with the Philippine Customs. (3) Ombudsman Gutierrez betrayed the public trust through her gross inexcusable delay or inaction by acting in deliberate disregard of the Supreme Court's findings and directive in its decision and resolution in Information Technology Foundation of the Philippines, et al. v. Commission on Elections, et al. II. Culpable violation of the Constitution The Second Complaint was endorsed by Representatives Neri Javier Colmenares, Teodoro A. Casio, Rafael V. Mariano, Luzviminda C. Ilagan, Raymond V. Palatino, Antonio L. Tinio, and Emerenciana A. De Jesus.

On 3 August 2010, the House of Representatives Committee on Justice (Committee on Justice) provisionally adopted the Rules of Procedure in Impeachment Proceedings of the Fourteenth Congress (Rules of Procedure). On 11 August 2010, the First and Second Complaints were referred by the Plenary to the Committee on Justice. On 1 September 2010, the Committee on Justice found the First and Second Complaints sufficient in form by a vote of 39 in favor and 1 against, and 31 in favor and 9 against, respectively. On 2 September 2010, the Rules of Procedure was published. On 7 September 2010, the Committee on Justice, voting 40 in favor and 10 against, affirmed that the First and Second Complaints were sufficient in form. Thereafter, the Committee on Justice found the First and Second Complaints sufficient in substance, by a vote of 41 in favor and 14 against and 41 in favor and 16 against, respectively. Petitioner was directed to file an answer to the complaints within 10 days from receipt of notice. On 13 September 2010, petitioner filed a petition for certiorari and prohibition1 before this Court seeking to enjoin the Committee on Justice from proceeding with the impeachment proceedings. The petition prayed for a temporary restraining order. The petition is based on the following grounds: I. In gross and wanton disregard of the rudimentary requirements of due process of law, the Committee acted with indecent and precipitate haste in issuing its assailed Resolutions, dated 1 September 2010 and 7 September 2010 which found the two (2) impeachment complaints filed against petitioner Ombudsman sufficient in form and substance. II. The Rules of Procedure in impeachment proceedings lack comprehensive standards in determining as to what amounts to sufficiency in form of an impeachment complaint and gives the members of the Committee unfettered discretion in carrying out its provisions. Thus, it contravenes the Constitution and violates petitioner Ombudsman's cardinal and primary right to due process,

thereby tainting the hearing conducted before the Committee on 1 September 2010 in relation to the sufficiency in form of the two (2) impeachment complaints with illegality and nullity. III. The Committee's finding that the two (2) impeachment complaints filed against petitioner Ombudsman are sufficient in form violate Section 3(5), Article XI of the 1987 Constitution which provides that no impeachment proceedings shall be initiated against the same official more than once within a period of one (1) year. In the Francisco case, the Honorable Court reckoned the start of the one (1) year bar on the impeachment of an impeachable officer from the date of the filing of the complaint. In the instant case, the first complaint was filed on 22 July 2010. Thus, the filing of the second complaint on 3 August 2010, a mere twelve (12) days after the filing of the first complaint, violates the one (1) year bar under the 1987 Constitution. The second complaint should, therefore, not have been accepted and referred to the Committee for action. IV. The contemplated consolidation of the two (2) impeachment complaints constitutes a contravention of the one (1) year bar. If the Committee would follow through on such course of action, it would be arrogating unto itself the power to alter or amend the meaning of the Constitution without need of referendum, a power denied to it by the 1987 Constitution and its very own rules. The Committee would also be allowed to to wantonly exercise unbridled discretion in carrying out the letter and spirit of the Constitution and to arbitrarily wield the two (2) impeachment complaints as instruments of harassment and oppression against petitioner Ombudsman. V. The Rules of Procedure in impeachable proceedings do not prescribe the form or standards in order for an impeachment complaint to be deemed sufficient in form. However, Section 16, Rule VII of the same rules provides that the Rules of Criminal Procedure under the Rules of Court shall, as far as practicable, apply to the impeachment proceedings before the House. In this regard, Section 13, Rule 110 of the 2000 Rules of Criminal Procedure mandates that a complaint must charge only one (1) offense. The Committee, in finding that the two (2) impeachable complaints charging petitioner Ombudsman with the offenses of culpable violation of the Constitution and betrayal of public trust sufficient in form, violated the cardinal rule

that a complaint must charge only one (1) offense. Thus, the two (2) impeachment complaints cannot be sufficient in form. VI. The two (2) impeachment complaints filed against petitioner Ombudsman do not meet the standards laid down by the Committee itself for the determination of "sufficiency of substance." A. Assuming as true the allegations of the two (2) impeachment complaints, none of them can be deemed of the same nature as the other grounds for impeachment under the Constitution. B. There is no legal right on the part of the complainants to compel petitioner Ombudsman to file and prosecute offenses committed by public officials and employees. On the other hand, there is no legal duty on the part of petitioner Ombudsman to file an Information when she believes that there is no prima facie evidence to do so. Thus, there can be no "violation of any legal right of the complainants" to speak of that can be the basis of a finding of "sufficiency in substance" of the two (2) impeachment complaints. The following day, during the en banc morning session of 14 September 2010, over the objections of Justices Carpio, Carpio Morales and Sereno who asked for time to read the petition, the majority of this Court voted to issue a status quo ante order suspending the impeachment proceedings against petitioner. The petition, with Urgent Motion for Immediate Raffle, was filed at 9:01 a.m. of 13 September 2010. I received a copy of the petition only in the afternoon of 14 September 2010, after the en banc morning session of that day. The petition consists of 60 pages, excluding the annexes. All the Justices should have been given time, at least an hour or two as is the practice in such urgent cases, to read the petition before voting on the issuance of the status quo ante order. Unfortunately, this was not done. Section 3(5), Article XI of the 1987 Constitution provides that "(n)o impeachment proceedings shall be initiated against the same official more than once within a period of one year." There are two impeachment complaints filed against petitioner, filed within days from each other. The First Complaint was filed on 22 July 2010 while the Second Complaint was filed on 3 August 2010.

In Francisco, Jr. v. House of Representatives,2 the Court had the occasion to discuss the meaning of the term "to initiate" as applied to impeachment proceedings. The Court ruled: From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint. x x x 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 x x x.3 (Emphasis supplied) Thus, there are two components of the act of initiating the complaint: the filing of the impeachment complaint and the referral by the House Plenary to the Committee on Justice. The Court ruled that once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period.4 On 11 August 2010, the two complaints were referred by the House Plenary to the Committee on Justice at the same time. The Committee on Justice acted on the two complaints, ruling on the sufficiency of form, and later of substance, at the same time. The prohibition against filing of another impeachment complaint within a one year period would apply if the First Complaint was referred by the House Plenary to the Committee on Justice ahead of the Second Complaint. There is nothing in the Constitution that prohibits the consolidation of the First and Second Complaints since they were referred by the House Plenary to the Committee on Justice at the same time. Neither the First nor the Second Complaint is prior to the other in terms of action of the House Plenary in referring the two complaints to the Committee on Justice. The Constitutional bar, therefore, will not apply in this case. Petitioner alleges that the Rules of Procedure lack comprehensible standards as to what amounts to sufficiency in form. Petitioner

asserts that the determination of the sufficiency in form must rest on something more substantial than a mere ascertainment of whether the complaint was verified by the complainants and whether it was properly referred to the Committee for action. Section 4, Rule III of the Rules of Procedure provides: Section 4. Determination of Sufficiency in Form and Substance. Upon due referral, the Committee on Justice shall determine whether the complaint is sufficient in form and substance. If the committee finds that the complaint is insufficient in form, it shall return the same to the Secretary General within three (3) session days with a written explanation of the insufficiency. The Secretary General shall return the same to the complainant(s) together with the committee's written explanation within three (3) session days from receipt of the committee resolution finding the complaint insufficient in form. Should the committee find the complaint sufficient in form, it shall then determine if the complaint is sufficient in substance. The requirement of substance is met if there is a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee. If the committee finds that the complaint is not sufficient in substance, it shall dismiss the complaint and shall submit its report as provided hereunder. Section 4 is not vague as petitioner asserts. The Rules of Procedure provides that "[t]he Rules of Criminal Procedure under the Rules of Court shall, as far as practicable, apply to impeachment proceedings before the House."5 Section 7, Rule 117 of the Revised Rules of Criminal Procedure provides that a complaint or information is sufficient if it states, among other things, the name of the accused and the acts or omissions complained of as constituting the offense. Following Section 16 of the Rules of Procedure, Section 7, Rule 117 of the Revised Rules of Criminal Procedure suppletorily applies to the Rules of Procedure to determine whether the impeachment complaints are sufficient in form. The fact that the acts complained of are enumerated in the impeachment complaints, coupled with the fact that they were verified and endorsed, is enough to determine whether the complaints were sufficient in form.

Petitioner also asserts that the complaints violate Section 13, Rule 110 of the Revised Rules of Criminal Procedure6 which provides that a complaint or information must charge only one offense. Petitioner alleges that the Committee on Justice found the impeachment complaints sufficient in form although the impeachment complaints charge petitioner with the offenses of culpable violation of the Constitution and betrayal of public trust. Petitioner argues that the impeachment complaints allege duplicitous offenses. The argument has no merit. The impeachment procedure is analogous to a criminal trial but is not a criminal prosecution per se.7 While the Rules of Procedure provide for the suppletory application of the Rules of Criminal Procedure in an impeachment proceedings, a strict application of the Rules of Criminal Procedure is not required in impeachment proceedings, as can be gleaned from the deliberations of the Constitutional Commission, thus: MR. MAAMBONG. Let us go to a bottom-line question then. When the Senate acting as body will now try the impeachment case, will it conduct the proceeding using principles of criminal procedure? MR. ROMULO. I do not think so, strictly speaking, that it need be criminal procedures. The important thing, I believe, is that the involved party should know the charges and the proceedings must be, in total, fair and impartial. I do not think we have to go to the minutiae of a criminal proceeding because that is not the intention. This is not a criminal proceeding per se. MR. MAAMBONG. In the matter of presentation for example, of evidence, when it comes to treason and bribery, would the rules on criminal procedure be applied, considering that I am no particularizing on the ground which is punishable by the Revised Penal Code, like treason or bribery? MR. ROMULO. Yes, but we will notice that, strictly speaking for the crime of treason under the Revised Penal Code, he is answerable for that crime somewhere else. So my conclusion is that obviously, it is in the criminal court where we will apply all the minutiae of evidence and proceedings and all these due processes. But we can be more liberal

when it comes to the impeachment proceedings, for instance, in the Senate, because we are after the removal of that fellow, and conviction in that case really amounts to his removal from office. The courts of justice will take care of the criminal and civil aspects.8 Further, the impeachment complaint is not the same as the Articles of Impeachment. The impeachment complaint is analogous to the affidavit-complaint of the private complainant filed before the prosecutor for purposes of the preliminary investigation. Such affidavit-complaint, prepared by the complainant, may allege several offenses. On the other hand, Section 13, Rule 110 of the Revised Rules of Criminal Procedure refers to the formal complaint or information prepared by the prosecutor and filed before the court after the preliminary investigation. Such formal complaint or information must charge only one offense against an accused. The Articles of Impeachment is prepared by the Committee after it votes to recommend to the House Plenary the filing of impeachment charges. The only requirement in preparing the Articles of Impeachment is that there is only one specific charge for each article. The Articles of Impeachment, as its name imply, may have several articles, each charging one specific offense. The proceedings before the Committee on Justice is like a preliminary investigation in a criminal case where there is no complaint or information yet. As pointed out in the deliberations of the Constitutional Commission, the impeachment proceeding is not a criminal prosecution. The impeachment proceeding covers not only criminal acts but also non-criminal acts, such as betrayal of public trust, which is the main charge against petitioner in both the First and Second Complaints. In Francisco, the Court noted that the framers of the Constitution could find no better way to approximate the boundaries of betrayal of public trust than by alluding to positive and negative examples.9 Thus: THE PRESIDENT. Commissioner Regalado is recognized. MR. REGALADO. Thank you, Madam President. I have a series of questions here, some for clarifications, some for the cogitative and reading pleasure of the members of the Committee

over a happy weekend without prejudice later to proposing amendments at the proper stage. First, this is with respect to Section 2, on the grounds for impeachment , and I quote: . . . culpable violation of the Constitution, treason, bribery, other high crimes, graft and corruption or betrayal of public trust. Just for the record, what would the Committee envision as a betrayal of public trust which is not otherwise covered by by other terms antecedent thereto? MR. ROMULO. I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it refers to his oath of office, in the end that the idea of public trust is connected with the oath of office of the officer, and if he violates that oath of office, then he has betrayed the trust. MR. REGALADO. Thank you. MR. MONSOD. Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks. THE PRESIDENT. Commissioner de los Reyes is recognized. MR. DE LOS REYES. The reason I proposed this amendment is that during the Regular Batasang Pambansa where there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term "betrayal of public trust," as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose,

Madam President. Thank you. MR. ROMULO. If I may add another example, because Commissioner Regalado asked a very good question. This concept would include, I think, obstruction of justice since in his oath he swears to do justice to every man; so if he does anything that obstructs justice, it could be construed as a betrayal of public trust. Thank you. MR. NOLLEDO. In pursuing that statement of Commissioner Romulo, Madam President, we will notice that in the presidential oath of then President Marcos, he stated that he will do justice to every man. If he appoints a Minister of Justice and orders him to issue or to prepare repressive decrees denying justice to a common man without the President being held liable, I think this act will not fall near the category of treason, nor will it fall under bribery of other high crimes, neither will it fall under graft and corruption. And so when the President tolerates violations of human rights through the repressive decrees authored by his Minister of Justice, the President betrays the public trust.10 Clearly, the framers of the Constitution recognized that an impeachment proceeding covers non-criminal offenses. They included betrayal of public trust as a catchall provision to cover noncriminal acts. The framers of the Constitution intended to leave it to the members of the House of Representatives to determine what would constitute betrayal of public trust as a ground for impeachment. Even the United States Senate recognizes that the Articles of Impeachment can contain various offenses. On 20 October 1989, the United States Senate impeached Judge Alcee Hastings (Hastings).11 Hastings was charged with 17 Articles of Impeachment ranging from corrupt conspiracy, knowingly making a false statement intended to mislead the trier of fact, fabrication of false documents, and improper disclosure by revealing highly confidential information that he learned as a supervising judge in a wiretap.12 Hastings was convicted in 8 of the Articles of Impeachment and was removed from office. Hence, there is nothing that would prevent the impeachment of petitioner for

various offenses contained in the Articles of Impeachment. Moreover, the Court cannot review the sufficiency of the substance of the impeachment complaints. The sufficiency of the substance will delve into the merits of the impeachment complaints over which this Court has no jurisdiction.13 The Court can only rule on whether there is a gross violation of the Constitution in filing the impeachment complaint, in particular, whether the complaint was filed in violation of the one-year ban. The Court cannot review the decision of the Committee on Justice to impeach. The Court ruled in Francisco: The first issue14 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.15 Impeachment is a political process. Thus, the decision to impeach lies exclusively on Congress. The most important thing in an impeachment proceeding is the vote by the House Plenary. Section 10 of the Rules of Procedure states that "[a] vote of at least one-third () of all Members of the House is necessary for the approval of the resolution setting forth the Articles of Impeachment. If the resolution is approved by the required vote, it shall then be endorsed to the Senate for its trial." The Rule is based on Section 3 (4), Article XI of the 1987 Constitution which states: Sec. 3. x x x (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. The Constitution is clear. After the vote of one-third of all the Members of the House is achieved, the Articles of Impeachment will automatically be forwarded to the Senate for trial. The Constitution only requires the vote of one-third of all the Members of the House for the Articles of Impeachment to be forwarded to the Senate whether or

not the complaint is sufficient in form and substance. Finally, there is no violation of petitioner's right to due process. Nobody can claim a vested right to public office. A public office is not a property right, and no one has a vested right to any public office.16 Thus: Again, for this petition to come under the due process of law prohibition, it would necessary to consider an office a "property." It is, however, well settled x x x that a public office is not property within the sense of the constitutional guaranties of due process of law, but is a public trust or agency. x x x The basic idea of the government x x x is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people he represents.17 Accordingly, I vote for the dismissal of the petition and the lifting of the status quo ante order issued by this Court against the House of Representatives. ANTONIO T. CARPIO Associate Justice Footnotes
1

Under Rule 65 of the 1997 Rules of Civil Procedure. 460 Phil. 830 (2003). Id. at 932. Emphasis supplied. Supra, note 2. Section 16.

Section 13. Duplicity of the offense.A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.

2 Record of the Constitutional Proceedings and Debates, 277. Id. Francisco, Jr. v. House of Representatives, supra note 2. 2 Record of the Constitutional Proceedings and Debates, 272.

10

11

http://www.senate.gov/artandhistory/history/common/briefing/Senate_ Impeachment_Role.htm#4.
12

http://www.senate.gov/artandhistory/history/common/briefing/Impeach ment_Hastings.htm.
13

Francisco, Jr. v. House of Representatives, supra note 2.

14

Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offense under the Constitution.
15

Francisco, Jr. v. House of Representatives, supra note 2, at 913. Montesclaros v. Comelec, 433 Phil. 620 (2002).

16

17

Id. at 637-638, citing Cornejo v. Gabriel, 41 Phil. 188 (1920). Emphasis in the original text.
The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION SERENO, J.: "No point is of more importance than that right of impeachment should be continued. Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice."

 George Mason, Delegate from Virginia1 I concur with the ponencia of Justice Conchita Carpio Morales particularly with respect to the following rulings: 1. The expanded certiorari jurisdiction of the Court allows it to review the acts of Congress and measure them against standards expressed in the Constitution. The power to arrive at a determination of whether or not there has been a grave abuse of discretion on the part of the Legislature in the exercise of its functions and prerogatives under the Constitution is vested in the Court. 2. The instant Petition is not premature; it raises issues that are ripe for adjudication. The Court is presented with "constitutional vagaries" that must be resolved forthwith with respect to the legal meaning of the simultaneous referral of two impeachment complaints by the Speaker of the House of Representatives to its Committee on Justice (public respondent Committee), and the extent of the legal need to publish the House Rules of Procedure in Impeachment Proceedings. 3. There was no violation of petitioner Merciditas Gutierrezs right to due process of law. 4. The "one offense, one complaint" rule in ordinary rules of criminal procedure cannot work to bar multiple complaints in impeachment proceedings, as the Constitution allows indictment for multiple impeachment offenses. 5. The determination of the permissibility of the consolidation of impeachment complaints is at the moment premature, conjectural or anticipatory; public respondent Committee has yet to rule on the consolidation. I diverge however, from the ponencia of the highly-respected Justice Conchita Carpio Morales, on the reckoning point of the one-year time bar on subsequent impeachment proceedings under the Constitution. I believe this Court, despite its several decisions on impeachment, has not paid sufficient attention to the full implication of the inherently discretionary character of the power of impeachment. The Court has straitjacketed its interpretation of the one-year bar by

failing to go beyond the records of the deliberations of the Commissioners of the 1986 Constitutional Commission. It has a duty to look beyond, when the records demonstrate that the Commissioners were so inordinately pressed to declare a starting point for "initiation of impeachment proceedings" during the deliberations to the unfortunate extent that they appear to have forgotten the nature of the power of impeachment. I refer to the deliberations during which Commissioner Maambong attempted to define the "initiation of impeachment proceedings." The Commissioners were unable to recognize during the deliberations that the entirety of steps involved in the process of impeachment is a mix of clerical/ministerial and discretionary acts, even while the power of impeachment itself is wholly discretionary. The apparent failure of one of the Commissioners to remember the inherently discretionary nature of the power of impeachment while being interpellated, such that he reckons the "initiation" to start with the filing of an impeachment complaint, however, should not be followed by this Courts own failure to look at the right place for an answer at the essential character of the power of impeachment. Reason is the foundation of all legal interpretation, including that of constitutional interpretation. And the most powerful tool of reason is reflecting on the essence of things. This is most especially needed when the Commissioners of the Constitutional Commission failed at an important time to articulate an interpretation of the constitution that is founded on reason; rather, they chose an interpretation that on the surface seemed reasonable, but on examination, turns out to have been arbitrary and highly problematic. The Constitution provides: "No impeachment proceedings shall be initiated against the same official more than once within a period of one year."2 The impeachment proceedings in the House of Representatives3 are constitutionally defined to consist of the following steps: A. Filing of the Verified Complaint. A verified complaint for impeachment is filed by either: (a) a Member of the House of Representatives; or (b) any citizen upon a resolution of endorsement by any Member thereof.4

B. Inclusion in the Order of Business. After filing, the complaint shall be included in the Order of Business within ten session days.5 C. Referral to the Committee. During the House Session when the complaint is calendared to be taken up, the Speaker of the House shall refer the complaint for impeachment to the proper committee within three session days.6 D. Committee Report. The Committee, after hearing, and by a majority vote of all its Members shall submit its report to the House within sixty (60) session days from the referral, together with the corresponding resolution.7 The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.8 E. House Plenary Vote. A vote of a 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.9 F. Transmittal of Articles of Impeachment. 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.10 Since these are the only constitutionally described steps in the process of impeachment in the House of Representatives, the starting point for the one-year bar must be among these steps; the question is, where? Note that none of these steps is constitutionally described as the "initiation of the impeachment proceedings." The parties to the case have advocated their positions on this issue in their respective Memoranda.11 Petitioner Gutierrez espouses the view that the very "act of filing the complaint is the actual initiation beginning or commencement of impeachment proceedings" that would commence the one-year timebar.12 On the other hand, public respondent Committee, through the Office of the Solicitor General (OSG), argues that the "impeachment is a process beginning with the filing of a complaint and terminating in its

disposition by the vote of at least one-third of all the members of the House"; and that the one-year period should be counted from the plenary action of the House on the Committees report.13 Meanwhile, private respondents Renato Reyes, Mother Mary John Mananzan, Danilo Ramos, Atty. Edre Olalia, Ferdinand Gaite and James Terry Ridon (private respondents Reyes) claim that the "term initiated therein takes place by the act of the House of Representatives of transmitting the Articles of Impeachment to the Senate for the conduct of the impeachment trial proceedings"; and, thus, the one-year period should commence from the transmittal by the House of Representatives of the Articles of Impeachment to the Senate.14 Finally, respondent-intervenor Feliciano R. Belmonte, Jr., as Speaker of the House, theorizes that the better interpretation of the constitutional time bar should be reckoned from the recommendation of the Committee to the House of Representatives.15 All the parties to the case, and the Court, are keenly aware of the latters ruling in Francisco v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.16 That ruling was categorical in stating that the impeachment proceeding is "initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action."17 Considering the factual circumstances of the instant case, and the experiences of the country with impeachment proceedings in the House since the Francisco ruling, the Court is faced with a good opportunity to reexamine its earlier disposition. Petitioner Gutierrezs argument that the one-year time bar on a second impeachment complaint should be counted from the mechanical act of filing the complaint alone18 is pregnant with a multitude of problems. Congress exclusive power to initiate impeachment cases would be effectively rendered inutile. This countrys experience with impeachment in the past decade has shown that pegging the time bar to the mechanical act of filing has transformed impeachment into a race on who gets to file a complaint the fastest regardless of whether such a first complaint is valid, proper, substantial or supported by evidence. Enterprising yet unscrupulous individuals have filed patently sham, frivolous or

defective complaints in the House in order to commence the one-year period and thus bar the subsequent filing of "legitimate" complaints against the same impeachable officer. In embracing the provisions of the 1987 Constitution, the Filipino people certainly did not countenance a technical loophole that would be misused to negate the only available and effective mechanism against abuse of power by impeachable officers. The opposite extreme propounded by private respondents Reyes that the period of the time bar starts from the filing of the Articles of Impeachment in the Senate is likewise untenable. Following their proposition, the one-year period will only commence when the report of the Committee favoring impeachment is approved by the required vote of the House, and the Articles of Impeachment are transmitted to the Senate. Consequently, if there is no transmittal of the Articles of Impeachment, then there is no one-year time bar. As a result, multiple parties may continue to file numerous complaints, until Articles of Impeachment are transmitted by the House to the Senate. This scenario of persistent filing until there is a transmittal of the Articles of Impeachment is equally abhorrent to the constitutional prohibition on multiple, successive and never-ending impeachment proceedings (not complaints). The machine-gun approach to the filing of an impeachment complaint until there is a successful transmittal to the Senate will greatly impede the discharge of functions of impeachable officers, who are not given any refuge from such repetitive proceedings. Justice and the efficient administration of government would be defeated, if the impeachment time bar is made to commence solely from the favorable transmittal of the Articles of Impeachment. The time consumed by impeachable officers fending off impeachment proceedings is the same, regardless of the result the time bar, therefore, must equally apply to unsuccessful impeachment attempts voted down by the House. Finally, the Court is confronted with the positions of public respondent Committee and respondent-intervenor Belmonte as opposed to the Courts ruling in Francisco. In Francisco, the time bar is counted from the acts of filing the impeachment complaint and its referral to a Committee,19 where the latter is a purely ministerial act of the Speaker of the House. On the other hand, both public respondent

Committee and respondent-intervenor Belmonte propose that the period of one year begin from discretionary acts, namely, from the submission of the Committee report on the complaint according to the Speaker, and from the one-third House plenary action on the report according to the public respondent Committee. With all due respect to the Courts ruling in Francisco, I uphold the position of the public respondent Committee. The doctrine of separation of powers in our theory of government pertains to the apportionment of state powers among coequal branches; namely, the Executive, the Legislature and the Judiciary. In establishing the structures of government, the ideal that the Constitution seeks to achieve is one of balance among the three great departments of government with each department undertaking its constitutionally assigned task as a check against the exercise of power by the others, while all three departments move forward in working for the progress of the nation.20 The system of checks and balances has been carefully calibrated by the Constitution to temper the official acts of each of these three branches.21 The power of impeachment is the Legislatures check against the abuses of the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman.22 Having been elected or appointed for fixed terms, these impeachable officers enjoy security of tenure, which is intended to enhance their capability to perform their governmental functions efficiently and independently. However, their tenure, arising from either direct election by the people or indirect appointment by the peoples representatives, is not carte blanche authority for them to abuse their powers. In the face of gross governmental abuse, the people have not been made so powerless by the Constitution as to suffer until the impeachable officers term or appointment expires. The Legislatures impeachment power is the very solution provided by the fundamental law to remove, in the interim, public officers who have failed to uphold the publics trust. The Ombudsman is the public official constitutionally tasked to investigate and prosecute complaints against other public officials23 except for impeachable officers and members of the national legislature. She is continually required by the Constitution to be of recognized probity and independence, 24 and must maintain this public trust during her term of office. Avoidance of the prospect of impeachment is the negative incentive for the Ombudsman, and all other impeachable officers, to keep that public

trust. Within the limitations set forth in the Constitution, impeachment is inarguably a political act exercised by the Legislature, a political body elected by and directly accountable to the people. This power "is lodged in those who represent the great body of the people, because the occasion for its exercise will arise from acts of great injury to the community, and the objects of it may be such as cannot easily be reached by an ordinary tribunal."25 Full discretion is vested in Congress, both the House and the Senate, to determine whether or not an officer should be impeached, subject only to constitutionally provided limits. Even if the expanded certiorari jurisdiction allows the Court to review legislative acts that contravene the express provisions of the Constitution, the Court cannot supplant with its own determination, that of Congress in finding whether a public officer has performed acts that are grounds for impeachment. The political character of the process is underscored by a degree of imprecision in the offenses subject of impeachment,26 thus allowing Congress sufficient leeway to describe the acts as impeachable or not.27 Since the power of impeachment is inherently discretionary, owing to its political character, then the time bar limitation imposed by the Constitution on this legislative discretion must likewise be counted from a discretionary, and not a ministerial, act. The one-year period was meant to be a restraint on the discretionary power of impeachment; otherwise, the Legislature would have been allowed to exercise that discretion at will repeatedly and continuously, to the detriment of the discharge of functions of impeachable officers. It is counterintuitive and illogical to place a limitation on discretionary powers, which is triggered not by the exercise of the discretion sought to be limited, but by a mere ministerial, ceremonial act perfunctorily performed preparatory to such exercise. We observe that the Constitution has placed time conditions on the performance of acts (both discretionary and ministerial in nature) in pursuit of the Houses exclusive power to initiate impeachment proceedings.28 These specific time conditions in the form of session days, however, have primarily been imposed for the purpose of

avoiding delays or filibusters, which members of the House may resort to in order to prolong or even defeat the impeachment process. Whether the step is discretionary or ministerial, the constitutional deadlines for the execution of impeachment steps regulate only the speed at which the proceeding is to take place. In contrast, the rule against the initiation of more than one impeachment proceeding against the same impeachable officer in a span of one year is a time constraint on the frequency with which the discretionary act of impeachment is to be exercised. The time bar regulates how often this power can be exercised by the House of Representatives. The rationale is that the extreme measure of removal of an impeachable officer cannot be used as Congress perennial bargaining chip to intimidate and undermine the impeachable officers independence. While each chamber of Congress is constitutionally empowered to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights.29 Further, there should be a reasonable relation between the mode or method of proceeding established by the rule and the result that is sought to be attained.30 I respectfully differ from my colleagues when in effect they rule that the one-year limitation on a discretionary power is to begin from the ministerial act of the Speaker in referring the impeachment complaint to the appropriate committee of the House of Representatives. I cannot reconcile the incongruity between the constitutional largeness of the power of impeachment an inherently discretionary power lodged in the entire Congress and the controlling effect that a small act of the Speaker in referring a complaint to the Committee has, over this large power of impeachment. Retired Justice Serafin Cuevas, counsel for petitioner Gutierrez, goes so far as to characterize the Speakers ministerial referral of the complaint as merely "ceremonial in character": JUSTICE SERENO: And you are basically your contention if [I] understand it is that this is the initiation? This is the act of initiating an impeachment

complaint? RET. JUSTICE CUEVAS: Yes, we subscribed to the view or we uphold the view that upon the filing thereof, it was already initiated because the referral to the Committee on Justice is only ceremonial in character. The Secretary of Justice cannot do anything with it except to refer or not. Why did it take him twenty two (22) days?31 (Emphasis supplied) Even on the part of the Speaker of the House, there is no exercise of discretion over the referral of the complaint to the Committee on Justice.32 The Speaker simply performs a ministerial function under the Constitution.33 The Speaker cannot evaluate the complaint as to its sufficiency in form and substance. And even if there is a technical defect in the impeachment complaint, the Speaker is duty-bound to refer the matter to the committee within three session days from its inclusion in the Order of Business. Moreover, as pointed out by Justice Carpio Morales, members of the House cannot even raise issues against the propriety or substance of the impeachment complaint during the referral, as in fact the only objection that can be entertained is the propriety of the committee to which the complaint is referred. There is a dissonance on how the House Speakers clerical/ministerial act of referring the complaint can commence the time bar on the discretionary power of the entire House to initiate an impeachment proceeding. The stark incompatibility between a small ministerial act controlling the substantive right of the House to initiate impeachment proceedings is viewed with concern by no less than retired Justice Cuevas, counsel for petitioner Gutierrez, who agrees with me in this wise: ASSOCIATE JUSTICE SERENO: I am sure, sir. But let us now go to the real question of the constitutional right of the House on impeachment and the clerical act of receiving impeachment complaints. Which is superior and which should be given more weight, the substantive right of the House to exercise its right to initiate impeachment complaints or is it the mere clerical act of finding out which complaint on its face bears the stamp,

the first the earliest of stamp? RET. JUSTICE CUEVAS: I am not aware of any law, Your Honor, that authorizes a mere clerk to do what you are trying to tell us, Your Honor. It is the House, that is the responsibility of the House. ASSOCIATE JUSTICE SERENO: Yes, thank you. RET. JUSTICE CUEVAS: If they were designated by the Secretary General, the physical acceptance of the complaint lies there. ASSOCIATE JUSTICE SERENO: Correct. RET. JUSTICE CUEVAS: But that acceptance does not automatically ASSOCIATE JUSTICE SERENO: Correct. RET. JUSTICE CUEVAS: ... initiate the impeachment proceedings. ASSOCIATE JUSTICE SERENO: Thank you very much, that is exactly what I wanted to hear viz-a-viz the substantive right of the House to initiate impeachment proceedings, this cannot be defeated by the clerical act of accepting an impeachment complaint. RET. JUSTICE CUEVAS:

I agree, Your Honor. (Emphasis supplied)34 Proceedings, as understood in law, include "any and all of the steps or measures adopted or taken, or required to be taken in the prosecution or defense of an action, from the commencement of the action to its termination, such as to the execution of the judgment." 35 "Proceedings, both in common parlance and in legal acception, imply action, procedure, prosecution. If it is a progressive course, it must be advancing; and cannot be satisfied by remaining at rest."36 In Macondray & Co., Inc., v. Bernabe,37 the Court ordered the payment of fees by the custodian of the attached properties, since the plaintiffs recovery of the costs includes any lawful fees paid by him or her for the "service of the summons and other process in the action." The Court defined the word "process" in this wise: As a legal term, process is a generic word of very comprehensive signification and many meanings. In its broadest sense process, it is equivalent to, or synonymous with, proceedings or procedure and embraces all steps and proceedings in a cause from its commencement to its conclusion. Sometimes the term is also broadly defined as the means whereby a court compels a compliance with its demands.38 (Emphasis supplied.) Therefore, the term "impeachment proceedings" should include the entire gamut of the impeachment process in the House from the filing of the verified complaint, to its referral to the appropriate committee, to the committees deliberations and report, up to the very vote of the House in plenary on the same report. It is only at the time that the House of Representatives as a whole either affirms or overrides the Report, by a vote of one third of all the members, that the initiation of the impeachment proceedings in the House is completed and the one-year bar rule commences. This is because the plenary House vote is the first discretionary act exercised by the House in whom the power of initiating impeachment proceedings repose. When the Court pegged, in Francisco, the time bar on the initiation of impeachment proceedings to the filing of the complaint and its referral to the appropriate committee, it may have failed to anticipate the

actions of parties who would subvert the impeachment process by racing to be the first to file sham and frivolous impeachment complaints. These unintended consequences, which make a mockery of the power of impeachment, justify a second look at the premises considered in Francisco. Reckoning the beginning of the time bar from a ministerial and preparatory act, instead of the exercise of the discretionary power of impeachment, tends to focus attention on the procedural loopholes. Thus, impeachable officers subject of the proceedings, as well as their counsel, abuse these technical gaps in the legal framework of impeachment. Their purpose is to escape removal or perpetual disqualification despite the serious and grave charges leveled against them. Questions on the number of complaints filed, the date or even the time of filing, and whether the complaints have been consolidated or even simultaneously referred become monkey wrenches that impede the entire process and frustrate the mechanism of impeachment to the point of infeasibility. As argued by public respondent Committee through retired Justice Vicente Mendoza during oral argument,39 these technical loopholes can be cured by rendering the plenary vote of the entire House on the report of the committee as the starting point of the one-year ban. The intensity of legal wrangling over the definition of the words "proceedings" and "initiate" diminishes in significance if the Court is to focus its attention on the sole, discretionary and exclusive power granted to the House as a whole body to initiate all impeachment cases. Aside from the fact that the plenary vote pertains to the very discretionary act of impeachment, which requires the vote of one-third of its members, the difficulties inherent in pegging the period to ministerial acts are lessened, if not eliminated. Let us look at some problems that this approach eliminates. First, whether there is a single complaint or multiple complaints filed before the House or taken up by the committee, the House in plenary will only vote once, in one impeachment proceeding, on whether to approve or disapprove the committees resolution. Second, the proposal also removes the undesired proclivity of parties to be the first to file or the first to be referred, since the ban regulates

not the speed of filing, but the frequency of the exercise by the House plenary of voting on the impeachment complaint/s. Third, it makes no difference whether the complaint is filed and/or referred successively or simultaneously, as was being deliberated upon in the public respondent Committee.40 The excessive emphasis on the physical time and date of filing or referral becomes inconsequential, if not absurd. Finally, the time limitation is reckoned from a discretionary act, which embraces a deliberate, informed and debated process, and not from the ministerial act of a single public officer. The one-year period from the plenary vote of the House on the committee report eliminates even the possibility, however remote, that the Speaker of the House and/or the Majority Floor Leader would include a sham impeachment complaint in the Order of Business and refer the complaint to the Committee on Justice in just a single session day, in order to bar any other subsequent impeachment complaint/s. The plenary vote by the House on the committee report is definite, determinable, and not ministerial; it is precisely the discretionary exercise of the power to initiate impeachments. As elucidated by retired Justice Mendoza during the oral argument: ASSOCIATE JUSTICE NACHURA: Justice Mendoza, just two things, I agree with you that the impeachment proceeding is really a process, is really a process. And I am open, my mind is at least open, to your suggestion that the initiation should be the entire proceedings in the House of Representatives. This would mean of course that the Committee would have prepared its report and submitted the report to the House of representatives in plenary. That would end the initiation, is that your position? RET. JUSTICE MENDOZA: Yes, Sir. ASSOCIATE JUSTICE NACHURA:

Irrespective of the action taken by plenary do we have to await the action of the plenary on the report of the Committee on Justice before we say that these (sic) have been initiation on the impeachment? RET. JUSTICE MENDOZA: It is actually the action on the House because the power to initiate is vested in the House not to the Committee of the House. Up to the submission of the report there is only action by the Committee. Action by the House to initiate the proceedings is the action on the Committee report. The point Mr. Justice is this, the House delegates the task of screening good from bad complaints so that its time will not be wasted to a Committee also and to protect the public officials from unnecessarily being made to face impeachment proceedings. So what is given to the Committee is the task of investigating and recommending action on the complaints. So unless action is taken therefore finally by the House, the exclusive power to initiate impeachment proceedings has not been discharged. (Emphasis supplied)41 Of course, there still exists the possibility that the complaining parties would file multiple complaints at the 11th hour before the entire House votes on the committee report. This last minute maneuver is presumably intended to delay the voting, until the belated complaint is referred and deliberated upon by the committee within the number of session days enumerated under the Constitution. However, the deadlines for the committee report and the subsequent voting by the plenary should be counted from the date of the complaint/s first referred, regardless of any subsequent complaints. Any pending impeachment complaint will be immediately barred once the House votes on the committee report. This rule will prevent the filing of subsequent complaints (albeit sham or frivolous), which would continually reset the sixty-session day period and, thus, result in the circumvention of the constitutional deadlines. A party who has a legitimate grievance supported by evidence against an impeachable officer will ordinarily not wait until the last minute to lodge the complaint. Ordinary diligence and good faith dictate that a person who has sufficient proof of wrongdoing and abuse against an impeachable officer will join and lend support to an

impeachment complaint that is already being deliberated upon by the House committee, at the soonest possible time. Hence, it is natural that all complaints with valid grounds and sufficient evidence will be collectively or separately raised at the first opportunity, in order that the committee and eventually the House will be able to perform its deliberative function and exercise discretion within the specified number of session days. Contrary to the position of respondent-intervenor Belmonte,42 the mere submission of the committee report to the plenary is not a good reckoning point for the one-year period. Undoubtedly, while the committee exercises a degree of discretion in deciding upon and coming up with the report, as when it determines whether the impeachment complaint/s is/are sufficient in form and substance,43 this discretion is exercised by a mere subset of the entire House, however, and is but preliminary. Although of persuasive value, the recommendations of the committee, which is composed of approximately fifty-five (55) members,44 are not binding on the entire House in plenary, which counts two hundred eighty-three (283) members.45 The power to initiate all cases of impeachment is an extraordinary exercise of the sovereign people through its elected representatives to immediately remove those found to have committed impeachable offenses.46 Therefore, the power to initiate impeachment proceedings is a power that is reposed upon the House of Representatives as a whole body, in representation of the sovereign, and this power cannot be taken over by a mere Committee. Irrespective of the Committees findings, the impeachment proceeding will rise or fall or continue up to the impeachment case in the Senate on the basis of the one-third vote of the House. Hence, the one-year period is a limitation on the discretionary power of the entire House to initiate impeachment proceedings, and not on the committees deliberations or recommendations with respect to the impeachment complaint/s. In summary, the following principles support the position that the time bar should be counted from the House of Representatives plenary action on the report of the Committee on Justice:

1. The time bar on impeachment proceedings cannot be counted from the filing of the complaint; otherwise the absurdity of individuals racing to file the first complaint would ensue, regardless of the complaints propriety or substance. 2. The time bar must equally apply, whether the impeachment complaint is successful or not. 3. The time bar, which is a limitation on the Houses exclusive power to initiate impeachment, must be counted from a discretionary act, not from a mechanical or ministerial act, especially not from acts that trivialize the impeachment process. 4. The time bar can only be reckoned from the plenary action of the House on the report of the committee (regardless of the outcome), since such action is done by the constitutional body in which the power is vested, and not by a mere subset that makes a preliminary finding that has only persuasive value. Judicial review serves an affirmative function vital to a government of limited powers the function of maintaining a satisfactorily high public feeling that the government has obeyed the law of its own Constitution and stands ready to obey it as it may be declared by a tribunal of independence.47 In this instance, in exercising the power of judicial review over the exclusive and sole power of the House to initiate impeachment cases, the Court must remember that it is also performing a legitimating function validating how the House exercises its power in the light of constitutional limitations. The Court in the present constitutional dilemma is tasked with doing what has been described as a "balancing act,"48 in determining the appropriate operation of the oneyear time bar on the initiation of subsequent impeachment proceedings vis--vis the need to allow Congress to exercise its constitutional prerogatives in the matter of impeachment proceedings. On the one hand, the undisputed raison dtre of the time bar is to prevent the continuous and undue harassment of impeachable officers, such as petitioner Gutierrez, in a way that prevents them from performing their offices functions effectively. On the other hand, the protection afforded to petitioner and other impeachable officers

against harassment is not a blanket mechanical safety device that would defeat altogether any complaint of wrongdoing, of which she and other impeachable officers may be accused. Therefore, the power to initiate impeachment proceedings should not be so effortlessly and expeditiously achieved by disgruntled politicians to pressure impeachable officers to submission and undermine the latters institutional independence. But neither should the power of impeachment be too unreasonably restrictive or filled with technical loopholes as to defeat legitimate and substantiated claims of gross wrongdoing. I submit that a balance of these two interests is better achieved if the time bar for the initiation of impeachment proceedings commences from the voting of the House on the committee report. Briefly, a subsequent impeachment proceeding against the same officer cannot be initiated until and unless one year lapses from the time the House in plenary votes either to approve or to disapprove the recommendations of the committee on impeachment complaint/s. What the Court is deciding herein is merely the scope of the constitutional limits on the power to initiate impeachment proceedings, and how the delineation of that scope would affect the second Impeachment Complaint filed by private respondent Reyes. This Court does not arrogate unto itself the power to determine the innocence or guilt of petitioner Gutierrez with respect to the allegations contained in the impeachment complaints of private respondents. Congress, the political branch of government, was entrusted with the power of impeachment, specifically, "because the objectives and the questions to be resolved are political."49 In the Constitution, the impeachment power is an extraordinary political tool to oust a public officer. It must, therefore, be exercised by those whose functions are most directly and immediately responsive to the broad spectrum of the Filipino people, rather than by the Courts. In expounding on the rationale for excluding the power of impeachment from the courts, Alexander Hamilton succinctly wrote: The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the

commitment of the trust to a small number of persons. These considerations seem alone sufficient to authorise a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. 50 On a final note, the issuance of the Status Quo Ante Order in this case was most unfortunate. It was issued over the objections of Justices Antonio Carpio, Conchita Carpio Morales, and myself. I believed then, as I believe now, that the Court, in issuing the said order, was overly intrusive with respect to a power that does not belong to it by restraining without hearing a co-equal branch of Government. This belief was made more acute by the fact that the order was voted upon in the morning of 14 September 2010, without the benefit of a genuinely informed debate, since several members of the Court, myself included, had not yet then received a copy of the Petition. No one should henceforth presume to tell the House of Representatives that any form of restraining order is still in effect and thereby seek to extend the effectivity of the Status Quo Ante Order. This is the legal import of the majority Decision. Premises considered, I vote to DISMISS the Petition in its entirety, and, consequently, the Status Quo Ante Order is immediately lifted. MARIA LOURDES P. A. SERENO Associate Justice Footnotes
1

The Debates in the Federal Convention of 1787 which Framed the Constitution of the United States of America, Reported by James Madison (International Edition), Gaillard Hunt and James Brown N. Scott (ed.) 1970 reprint, at 290.
2

Constitution, Art. XI, Sec. 3 (4). Id, Sec. 3 (1).

Id, Sec. 3 (2). The verified complaint is filed with the Office of the Secretary General of the House of Representatives. (15th Congress Rules of Procedure in Impeachment Proceedings, Rule II, Section 3)

Id. Id. Id. Id. Constitution, Art. XI, Sec. 3 (3). Id. Sec. 3 (4).

10

11

Private respondents Risa Hontiveros-Baraquel, Danilo D. Lim, Felipe Pestao and Evelyn Pestao (private respondents Baraquel) argue that the one-year time-bar rule under the Constitution is inapplicable to the first Impeachment Complaint that they filed against petitioner Gutierrez. (Private respondent Baraquels Memorandum dated 27 October 2010, at 5-6) Petitioner Gutierrezs Memorandum dated 21 October 2010, at 2740.
12

Public respondents Memorandum dated 26 October 2010, at 6185. See also public respondent Reply Memorandum dated 15 November 2010, at 21-34.
13

Private respondents Reyess Memorandum dated 26 October 2010, at 26-44.

14

Respondent-intervenor Belmontes Memorandum for the Intervenor Ex Abundanti Cautela dated 27 October 2010, at 19-25.
15 16

G.R. Nos. 160261, 160262-63, 160277, 160292, 160295, 160310, 160318, 160342-43, 160360, 160365, 160370, 160376, 160392, 160397, 160403, 160405, 10 November 2003, 415 SCRA 44.
17

Id. at 169.

18

"The filing of an impeachment complaint constitutes the only true and actual initiation of impeachment proceedings. This operative and immutable fact cannot be downplayed or trivialized as being the mere

solitary act which begins the initiation process. That the filing of the complaint admittedly begins the process of initiation only underscores the plain and inescapable fact that it is the very start, the very inception, the very origin of an impeachment proceeding." (Petitioner Gutierrezs Consolidated Reply dated 15 October 2010, at 15)
19

"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." (Francisco, supra note 15, at 169)
20

Carpio Morales, Dissenting Opinion, De Castro v. Judicial and Bar Council, G.R. No. 191002, 191032, 191057, 191149, 191342, 191420 & A.M. No. 10-2-5-SC, 20 April 2010.
21

Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 04 September 2008, 549 SCRA 77.
22

Constitution, Art. XI, Sec. 2. Constitution, Art. XI, Sec. 12. Id, Sec. 8. Labovitz, John R., Presidential Impeachment, 20 (1978).

23

24

25

26

The grounds for impeachment are culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. (Constitution, Art. XI, Sec. 2)
27

Although some of the grounds for impeachment are specifically defined under penal laws (treason, bribery, graft and corruption), those laws and their concomitant jurisprudence are mere guides for the members of Congress and are not exactly bound to these definitions, given the discretionary power vested in them.

28

The Constitution provides a specific time conditions for several acts in the impeachment process, namely: (a) inclusion of the impeachment complaint in the Order of Business (ten session days); (b) referral to the Committee (three session days); (c) report of the Committee (sixty session days); and (d) calendar of the Committee report to the plenary (ten session days).
29

Arroyo v. De Venecia, G.R No. 127255, 14 August 1997, 277 SCRA 268 citing U.S. v. Ballin, Joseph & Co., 144 U.S. at 5.36 L.Ed. at 324-25.
30

Id. TSN, 05 October 2010, at 119-120.

31

32

"aa. Justice, 55 Members. All matters directly and principally relating to the administration of justice, the Judiciary, the practice of law and integration of the Bar, legal aid, penitentiaries and reform schools, adult probation, impeachment proceedings, registration of land titles, immigration, deporation, naturalization, and the definition of crimes and other offenses punishable by law and their penalties." (House Rules of Procedure, Rule IX The Committees, Sec. 27 [aa])
33

"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." (Callejo, Concurring Opinion, Lambino v. COMELEC, G.R. No. 174153 & 174299, 25 October 2006, 505 SCRA 160, citing Codilla, Sr. v. De Venecia, G.R. No. 150605, 10 December 2002, 393 SCRA 639)
34

TSN, 05 October 2010, at 142-143. 1 C.J.S. Actions 1(h)(1)(a), at 955.

35

36

34 Words and Phrases 142 (1957), citing Beers v. Haughton, 34 U.S. 329, 368, 9 Pet. 329, 368, 9 L.Ed. 145.
37

G. R. No. L-45410, 67 Phil. 661(1939).

38

Macondray & Co., Inc., v. Bernabe, 67 Phil. 661 (1939), citing 50 C.J., 441; cf. Philippine Law Dictionary, 748 (Federico B. Moreno ed., 3rd ed. 1988).
39

TSN, 12 October 2010, at 88-90.

40

"Rep. Datumanong raised again the issue of having two impeachment complaint referred to the Committee. According to him, the journal of the House on August 11 reflects the successive, and not simultaneous, referral to the two complaints to the Committee. This position was later reiterated by Re. Rufus Rodriguez, who stated that it is a physical impossibility to refer two complaints to the Committee at exactly the same time. Rep. Neptali Gonzales II answered Rep. Datumanongs query, and maintained that in the same journal, both complaints were referred to the Committee on Justice at exactly the same time, which shows the intention of the House to refer the complaints simultaneously and not successively. Rep. Gonzales also stated that there is nothing in the Constitution or the Rules on Impeachment that prevents the Committee from consolidating the two complaints against an impeachable officer." (Minutes of the Meeting of the Committee on Justice, 07 September 2010 at 5; cf. petitioner Gutierrezs Compliance and Manifestation dated 30 September 2010)
41

TSN, 12 October 2010, at 133-135.

"102. The moment when an impeachment is initiated therefore is a process that starts from the filing up until the recommendation of the House Committee on Justice to the House of Representatives. It is still a process and a continuum, but it is a process that allows democratically elected forums to weigh in." (Respondent-intervenor Belmontes Memorandum dated 27 October 2010, at 22)
42 43

"Section 4. Determination of Sufficiency in Form and Substance. Upon due referral, the Committee on Justice shall determine whether the complaint is sufficient in from and substance. If the committee finds that the complaint is insufficient in form, it shall return the same to the Secretary General within three (3) session days with a written explanation of the insufficiency. The Secretary General shall return the same to the complaint(s) together with the committee's written

explanation within three (3) session days from receipt of the committee resolution finding the complaint insufficient in form." "Should the committee find the complaint sufficient in form, it shall then determine if the complaint is sufficient in substance. The requirement of substance is met if there is a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee. If the committee finds that the complaint is not sufficient in substance, it shall dismiss the complaint and shall submit its report as provided hereunder." (House Rules of Procedure in Impeachment Proceedings, Sec. 4)
44

House Rules of Procedure, Rule IX (The Committees), Sec. 27 (aa).

45

<http://www.congress.gov.ph/members/> (Last accessed on 24 January 2011)

46

"On a more fundamental level, the impeachment power is, in fact, an exercise of sovereignty. It is a choice by the representatives of the people to immediately remove those unfit for public service. Impeachment involves conviction and removal of government officers of the highest level and, hence, is an extreme measure. So, it is but appropriate that it is the Congress the direct representatives of the people which should wield the power of impeachment. Therefore, the power to initiate impeachment proceedings may not be exercised by a lone congressman or by a citizen by the sheer act of filing an impeachment complaint." (Tamano, Adel A., Handbook on Impeachment under the 1987 Constitution [1st Ed., 2004], at 21)
47

Charles L. Black, Jr., The People and the Court: Judicial Review in a Democracy, 86 (1960). " So, that is why I am saying now that we should not only consider the rights of the accused we should also consider the rights of the State. We should try to do a balancing act such that we will come out with a favorable decision which is fair to both parties." (Justice Carpio Morales, TSN, 05 October 2010, at 335)
48 49

John R. Labovitz, Presidential Impeachment 251 (1978).

50

Federalist No. 65, at 439-45 (07 March 1788).

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION NACHURA, J.: Justice Conchita Carpio Morales once again impresses with her incisive and tightly written ponencia. While I agree with the defenestration1 of the petition, I am constrained to express my views on the ripeness of the issues posed by petitioner. Before anything else, however, the antecedents. Taking the cue from "matuwid na landas," the theme of President Benigno C. Aquino IIIs inaugural address, private respondents Risa Hontiveros-Baraquel, Danilo Lim, and spouses Felipe and Evelyn Pestao filed an impeachment complaint (Baraquel Complaint) on July 22, 2010, against petitioner Ombudsman Ma. Merceditas Gutierrez. On July 26, 2010, the 15th Congress opened its first session, and representative Feliciano Belmonte was elected Speaker of the House of Representatives. The very next day, or on July 27, 2010, Atty. Marilyn Barua-Yap, Secretary-General of the House of Representatives, transmitted the impeachment complaint to House Speaker Feliciano Belmonte. In a Memorandum dated August 2, 2010, Speaker Belmonte directed the Committee on Rules to include the complaint in the Order of Business. On August 3, 2010, the House of Representatives received yet another impeachment complaint against petitioner, which was filed by private respondents Renato Reyes, Jr., Mother Mary John Mananzan, Danilo Ramos, Edre Olalia, Ferdinand Gaite, and James Terry Ridon (Reyes Complaint). On even date, the Secretary-General transmitted the Reyes Complaint to Speaker Belmonte. In turn, as he had done with the previous complaint, Speaker Belmonte directed the

Committee on Rules to include the Reyes Complaint in the Order of Business. Further, on even date, the House of Representatives provisionally adopted the Rules of Procedure in Impeachment Proceedings of the 14th Congress. Parenthetically, both the Baraquel2 and Reyes3 Complaints were endorsed by Members of the House of Representatives, as mandated in the Constitution.4 The two complaints separately alleged betrayal of public trust and culpable violation of the Constitution, to wit: 1. Baraquel Complaint I. OMBUDSMAN MA. MERCEDITA[S] BETRAYED THE PUBLIC TRUST. i. THE DISMAL AND UNCONSCIONABLY LOW CONVICTION RATES ACHIEVED BY THE OFFICE OF THE OMBUDSMAN FROM 2008 ONWARD INDICATE A CRIMINAL LEVEL OF INCOMPETENCE AMOUNTING TO GRAVE DERELICTION OF DUTY x x x. ii. THE UNREASONABLE FAILURE OF THE OMBUDSMAN TO TAKE PROMPT AND IMMEDIATE ACTION, IN VIOLATION OF ITS OWN RULES OF PROCEDURE, ON THE COMPLAINTS FILED AGAINST VARIOUS PUBLIC OFFICIALS INCLUDING FORMER PRESIDENT GLORIA MACAPAGAL-ARROYO, AND HER HUSBAND JOSE MIGUEL T. ARROYO WITH REGARD TO THE NBN-ZTE BROADBAND PROJECT x x x. iii. THE INEXCUSABLE DELAY OF THE OMBUDSMAN IN CONDUCTING AND CONCLUDING ITS INVESTIGATION INTO THE WRONGFUL DEATH OF ENSIGN PHILIP ANDREW PESTAO ABOARD A PHILIPPINE NAVY VESSEL x x x. NAVARRO-GUTIERREZ

iv. THE DECISION OF THE OMBUDSMAN UPHOLDING THE "LEGALITY" OF THE ARREST AND INVOLUNTARY DETENTION OF THEN REPRESENTATIVE RISA HONTIVEROS-BARAQUEL BY THE PHILIPPINE NATIONAL POLICE IN MARCH 2006 IN VIOLATION OF THE EXPLICIT RULES PROVIDED IN THE REVISED PENAL CODE AND AS ESTABLISHED BY JURISPRUDENCE x x x. v. THE FAILURE OF THE OMBUDSMAN TO CONDUCT AN INVESTIGATION INTO POSSIBLE WRONGDOING OR IMPROPRIETY WITH REGARD TO THE P1,000,000.00 DINNER FOR THE PRESIDENTIAL PARTY AT LE CIRQUE RESTAURANT IN NEW YORK IN AUGUST 2009 DESPITE WIDESPREAD MEDIA COVERAGE AND PUBLIC CLAMOR, AND A FORMAL LETTER FROM REPRESENTATIVE WALDEN F. BELLO CALLING FOR AN INQUIRY CONSTITUTES BETRAYAL OF THE PUBLIC TRUST. II. OMBUDSMAN MA. MERCEDITAS NAVARRO-GUTIERREZ PERFORMED ACTS AMOUNTING TO CULPABLE VIOLATION OF THE CONSTITUTION vi. THE REPEATED FAILURES OF THE OMBUDSMAN TO TAKE PROMPT ACTION ON A WIDE VARIETY OF CASES INVOLVING OFFICIAL ABUSE AND CORRUPTION VIOLATES (sic) ARTICLE XI, SECTION 12 AND ARTICLE III, SECTION 16 OF THE CONSTITUTION, WHICH MANDATE PROMPT ACTION AND SPEEDY DISPOSITION OF CASES. vii. THE REFUSAL OF THE OMBUDSMAN TO GRANT READY ACCESS TO PUBLIC RECORDS SUCH AS THE STATEMENT OF ASSETS AND LIABILITIES AND NET WORTH (SALN) REQUIRED

OF ALL PUBLIC OFFICERS UNDER REPUBLIC ACT NO. 6713 CONSTITUTES A CULPABLE VIOLATION OF ARTICLE XI, SECTION 13(6) AND ARTICLE III, SECTION 7 OF THE CONSTITUTION.5 2. Reyes Complaint I. BETRAYAL OF TRUST (1) OMBUDSMAN GUTIERREZ COMMITTED BETRAYAL OF PUBLIC TRUST THROUGH HER GROSS INEXCUSABLE DELAY IN INVESTIGATING AND FAILURE IN PROSECUTING ANY ONE OF THOSE INVOLVED [I]N THE ANOMALOUS TRANSACTIONS ARISING FROM THE FERTILIZER FUND SCAM DESPITE THE BLATANT ANOMALOUS TRANSACTIONS REVEALED IN THE COA FINDINGS, SENATE COMMITTEE REPORT 54 AND THE COMPLAINTS FILED WITH [PETITIONER] ON THE "FERTILIZER SCAM." (2) OMBUDSMAN GUTIERREZ COMMITTED BETRAYAL OF PUBLIC TRUST WHEN SHE DID NOT PROSECUTE GEN. ELISEO DE LA PAZ FOR VIOLATING BSP CIRCULAR 98 (1995), AS AMENDED BY BSP CIRCULAR 507 (2006), IN RELATION TO REPUBLIC ACT 6713, WHICH PROHIBITS THE TAKING OUT OF THE COUNTRY OF CURRENCY IN EXCESS OF US$10,000.00 WITHOUT DECLARING THE SAME TO THE PHILIPPINE CUSTOMS, DESPITE THE FACT THAT GEN. ELISEO DE LA PAZ PUBLICLY ADMITTED UNDER OATH BEFORE THE SENATE BLUE RIBBON COMMITTEE THAT HE TOOK OUT OF THE COUNTRY CURRENCY IN EXCESS OF US$10,000.00 WITHOUT DECLARING THE SAME [TO] THE PHILIPPINES CUSTOMS. (3) OMBUDSMAN GUTIERREZ BETRAYED THE PUBLIC TRUST THROUGH HER GROSS INEXCUSABLE DELAY OR INACTION BY ACTING IN DELIBERATE DISREGARD OF THE SUPREME COURTS FINDINGS AND DIRECTIVE IN ITS DECISION AND RESOLUTION IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, ET AL. V. COMMISSION ON ELECTIONS, ET AL. II. CULPABLE VIOLATION OF THE CONSTITUTION

THROUGH HER REPEATED FAILURES AND INEXCUSABLE DELAY IN ACTING UPON THE MATTERS BROUGHT BEFORE HER OFFICE, OMBUDSMAN GUTIERREZ VIOLATED SECTION 12 AND SECTION 13, PARAGRAPHS 1, 2 AND 3, ARTICLE XI ON WHICH HER CONSTITUTIONAL DUTY IS ENSHRINED, AS WELL AS SECTION 16, ARTICLE III OF THE CONSTITUTION, WHICH MANDATES PROMPT ACTION AND SPEEDY DISPOSITION OF CASES.6 On August 10, 2010, upon the instruction of House Majority Leader Neptali Gonzales II, Chairperson of the Committee on Rules, the two impeachment complaints were included in the Order of Business for the following day, August 11, 2010. On August 11, 2010, during its plenary session, the House of Representatives simultaneously referred both complaints to public respondent House Committee on Justice. In a Resolution dated September 1, 2010, the House Committee on Justice found both complaints sufficient in form. On September 2, 2010, the Rules of Procedure in Impeachment Proceedings of the 15th Congress was published. On September 6, 2010, petitioner attempted to file a motion for reconsideration of the September 1, 2010 Resolution of public respondent House Committee on Justice, which found both complaints sufficient in form. However, the House Committee on Justice, did not accept the motion, and informed petitioner that she should instead file her answer to the complaints upon her receipt of notice thereof, along with copies of both complaints. At the hearing on September 7, 2010, public respondent House Committee on Justice issued a Resolution finding both complaints sufficient in substance. Posthaste, on the same date, petitioner was served notice directing her to file an answer within ten (10) days. Alleging grave abuse of discretion amounting to excess of jurisdiction by public respondent House Committee on Justice in issuing the Resolutions dated September 1 and 7, 2010, which found the impeachment complaints sufficient in form and substance,

respectively, petitioner filed the present petition for certiorari and prohibition with prayer for the issuance of injunctive reliefs. Foremost in petitioners arguments is the invocation of our ruling in the trailblazing case of Francisco, Jr. v. The House of Representatives.7 Petitioner points out that in taking cognizance of the two (2) complaints and requiring her to file an answer thereto, public respondent violated the constitutional prohibition against the initiation of impeachment proceedings against the same official more than once within a period of one year.8 Not unexpectedly, petitioner advances that the ruling in Francisco definitively declares that the initiation of impeachment proceedings plainly refers to the filing alone of an impeachment complaint. In all, petitioner is of the view that the sole act of filing one (1) impeachment complaint forecloses all situations for the filing of another impeachment complaint within a given year. Petitioner likewise raises the alleged violation of her right to due process of law, in both its substantive and procedural aspects. Essentially, petitioner claims that the House Committee on Justice committed various violations equivalent to grave abuse of discretion amounting to excess of jurisdiction. In other words, the House Committee on Justice violated the Constitution; hence, the Court must intervene. I believe that the issue for resolution is not yet upon us; the issues, as presented by petitioner, are palpably not ripe for adjudication. Curiously, despite the effusive petition before us, petitioner did not file an answer to the complaints despite receipt of notice to do so. Instead, petitioner came directly for succour to this Court. The power of judicial review is not boundless and not without limitation. The expanded jurisdiction of this Court, notwithstanding, invocation of judicial review requires that the issues presented are ripe for adjudication. Unfortunately, it is my view that the facts obtaining herein do not, as yet, permit judicial intervention. The supplications contained in the petition are premature and ought to be brought first before the House Committee on Justice.

Lozano v. Nograles9 instructs us on the two-fold aspect of ripeness: An aspect of the "case-or-controversy" requirement is the requisite of "ripeness." In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. Another approach is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. An alternative road to review similarly taken would be to determine whether an action has already been accomplished or performed by a branch of government before the courts may step in. Hewing closely to the foregoing is the second, albeit less popular, case of Francisco v. The House Committee on Justice,10 where we dismissed the petition on the ground of prematurity: Ripeness and prematurity are correlated matters. 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. 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. On the other hand, prematurity deals with the question of whether all remedies have been exhausted before resort to the courts could be had. In this case, the resolution of the Committee on Justice to treat the Amended Complaint as a second impeachment complaint is yet to be passed upon by the House in a plenary session. xxxx Thus, the Committee on Justice should submit to the House a report on its action to treat the Amended Complaint as a second impeachment complaint and also on its determinations on the sufficiency in form and substance of the impeachment complaint. Then, the report shall be deliberated and acted upon by the House.

The Court should, therefore, wait until after all the remedies in the House are exhausted. Indeed, this is not yet the auspicious time to resolve the issues raised in the petition. We find striking similarities between the second Francisco and the case at bar. Petitioner has yet to formally answer and appear before the House Committee on Justice. The House Committee on Justice has not been given opportunity to address the points raised by petitioner in her petition before us, which the latter could very well raise before public respondent. Applying the rule on the two-fold aspect of ripeness used in other jurisdictions and the demonstration of actual injury to pass the test of ripeness in this jurisdiction, it is quite obvious to me that, at this juncture, petitioner has not established the fitness of the issues for our decision, hardship if we withhold consideration, much less actual injury to petitioner. A juxtaposition of the timeline for the initiation of impeachment complaints mapped out in Section 3(2), Article XI of the Constitution, which provides: SEC. 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. and Sections 2 and 3, Rule II of the Rules of Procedure in Impeachment Proceedings which read: RULE II INITIATING IMPEACHMENT Section 2. Mode of Initiating Impeachment. Impeachment shall be

initiated by the filing and subsequent referral to the Committee on Justice of: (a) a verified complaint for impeachment filed by any Member of the House of Representatives; or (b) a verified complaint filed by any citizen upon a resolution of endorsement by any member thereof; or (c) a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all Members of the House. Section 3. Filing and Referral of Verified Complaints. A verified complaint for impeachment by a Member of the House or by any citizen upon a resolution of endorsement by any member thereof shall be filed with the Office of the Secretary-General and immediately referred to the Speaker. The Speaker shall have it included in the Order of Business within ten (10) session days from receipt. It shall then be referred to the Committee on Justice within three (3) session days thereafter. do not indicate any deviation from the constitutional mandate. It cannot be overemphasized that petitioner has yet to formally appear before public respondent, and the latter has not yet terminated its hearing of the impeachment complaints. Clearly, there is no constitutional violation justifying this Courts intervention even without delving into the burning question of whether the initiation proceedings are deemed initiated with the mere filing of a complaint, and its referral to the House Committee on Justice, or should await the submission of a report by the House Committee on Justice. In fact, during oral arguments, the following was limned: JUSTICE NACHURA: In fact, I would like to believe, therefore, Justice Cuevas, that when you make a reference to a violation of due process in this particular case, it is really a violation of the procedural aspect of due process, primarily the first requisite of due process which is that there must be an impartial court or tribunal with authority to hear and decide a case.

And that was the first statement you made. The Committee on Justice deprived the petitioner of due process because of its haste, its partiality and its vindictiveness. Those were your words. RET. JUSTICE CUEVAS: Right, Your Honor. JUSTICE NACHURA: All right. However, when you developed this, you said there was delay in the filing or in the referral of the first complaint because the first complaint was filed on July 22 RET. JUSTICE CUEVAS: July 22, 2010, Your Honor. JUSTICE NACHURA: The second complaint was filed on August 3, 2010? RET. JUSTICE CUEVAS: Yes, Your Honor. JUSTICE NACHURA: And both complaints were referred only to the Committee on Justice on August 11, 2010? RET. JUSTICE CUEVAS: On the same day at the same time. JUSTICE NACHURA: The same day at the same time on August 11, 2010? RET. JUSTICE CUEVAS: We do not want to believe, Your Honor, that this was intentional. But

it cannot be accidental. Same day, same time, Your Honor. Why will it take the Speaker of the House twenty (20) days before a referral of the impeachment complaint number 1 is made to the Committee on Justice and only eight days (8) days insofar as the second impeachment complaint? JUSTICE NACHURA: Justice Cuevas, I am looking at a calendar right now. On July 22, Congress had not yet started its sessions. It was only on July 26 that sessions in Congress started with the delivery by the President of the State of the Nation Address. And in the House, I am sure, there was still no organization of the committees by then. It would have taken, perhaps, at least a week, maybe two (2) weeks, before the committees could be truly organized by the leadership of the House. And if you count two (2) weeks from July 26, you would go to around August 9 and that would be near August 11. Obviously, we cannot impute vindictiveness or partiality on the basis of this alleged delay in the referral of the complaints. xxxx RET. JUSTICE CUEVAS: Our charge of impartiality does not merely gravitate on that particular aspect, Your Honor. x x x.11 On that point, counsel for petitioner obviously yielded. Very apparent from all the foregoing is that a contingent event is still about to unfold, specifically, the Answer to be filed by petitioner, which public respondent has yet to hear and rule on. The Constitution, in no uncertain terms, declares that the Committee should hear the complaint, and after hearing, submit a report to the House within sixty (60) days from referral thereof. A co-equal branch of government has not committed a positive act, i.e., to hear the defenses raised by petitioner in her Answer; we have no business to interfere, especially at this stage. Public respondent House Committee on Justice must be allowed to conduct and continue its hearing of the impeachment complaints against petitioner. At that stage, petitioners apprehensions of the Committees partiality and

vindictiveness would, perhaps, become justified. I vote to DISMISS the petition. ANTONIO EDUARDO B. NACHURA Associate Justice Footnotes
1

The act of throwing someone or something out of a window. The term is associated with political dissidence and political assassinations in 15th to 17th century Prague where rioters made a habit of it. There was one in 1419 at the Town Hall where a mob, demanding the release of prisoners, threw councillors out, and a more famous one known as the Defenestration of Prague in 1618 which heralded the 30-Year War when a gang of Protestant nobles threw two Catholic governors out of the window of the Royal Palace. (See <http://www.thefreedictionary.com/Defenestration+of+Prague> [visited February 14, 2011].)
2

Endorsed by Party-list Representatives, Kaka Bag-ao and Walden Bello of the Akbayan Party-list.
3

Endorsed by Party-list Representatives Neri Javier Colmenares of Bayan Muna, Teodor Casio of Bayan Muna, Rafael Mariano of Anakpawis, Luzviminda C. Ilagan of Gabriela, Raymond V. Palatino, Antonio L. Tinio of Act Teacher, Emerenciana A. De Jesus of Gabriela.
4

Art. XI, Sec. 3(2). Annex "F" of the Petition. Annex "G" of the Petition. 460 Phil. 830 (2003). CONSTITUTION, Art. XI, Sec. 3(5).

G.R. Nos. 187883 and 187910, June 16, 2009, 589 SCRA 356, 358359.

10

Extended Resolution, G.R. No. 169244, September 1, 2005. TSN, October 5, 2010, pp. 88-91.

11

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION BRION, J.: I dissent from the ponencias conclusion that the proceedings before the House of Representatives Committee on Justice (Justice Committee) are constitutional. These proceedings were undertaken without the benefit of duly published and fully effective rules of impeachment and are, thus, fatally infirm for violation of the petitioners right to due process. I believe, too, that we should revisit our ruling in Francisco v. House of Representatives1 as we did not apply the proper consideration when we determined the back-end of the initiation phase of the impeachment proceedings. The initiation phase should start at the filing of the impeachment complaint and end when the Justice Committee determines that the impeachment is sufficient in form and substance. Thus, I vote to grant the petition. I. Publication and Due Process a. The Due Process Objection In the course of assailing the actions of the House of Representatives in its impeachment proceedings, the petitioner raised various due process grounds, both substantive and procedural. The threshold issue, however, that must be met before any substantive due process consideration can be made, is whether there were valid and effective rules of impeachment in place, as required by Section 3(8) of Article XI of the Constitution, when the House of Representatives embarked

on the impeachment process. To the petitioner, the Justice Committee failed to properly determine the sufficiency in form of the two impeachment complaints against her since no valid and effective rules of impeachment were in place when the Justice Committee ruled on these matters; the impeachment rules of the 15th Congress were published a day after the Justice Committee ruled that the complaints were sufficient in form. While the impeachment rules were published on September 2, 2010, they were not yet effective when the Justice Committee ruled that the impeachment complaints were sufficient in substance on September 7, 2010. Because no valid rules were in place when the Justice Committee initially acted and ruled on the impeachment complaints, a fatal transgression of the petitioners right to due process occurred. b. Justification for Judicial Intervention Impeachment proceedings are political processes that the Constitution places within the exclusive domain of the legislature. Section 3(1), Article XI of the Constitution plainly states that: "The House of Representatives shall have the exclusive power to initiate all cases of impeachment." Section 3(6) of the same article grants to the Senate the sole power to try and decide all cases of impeachment. Even the drafting of the impeachment rules is specifically entrusted to the House of Representatives. At the same time that it entrusts the impeachment process to the House of Representatives, the Constitution also provides clear standards and guidelines for the House of Representatives to follow to ensure that it does not act arbitrarily. Among these are: the specification of the grounds for impeachment,2 the periods within which an impeachment complaint should be acted on,3 the voting requirements,4 the one year bar on initiating an impeachment process,5 and the promulgation of the impeachment rules.6 Unwritten in the article on impeachment but, nevertheless, fully applicable are the guaranteed individual rights that the House of Representatives must absolutely respect.7 To the extent of these standards and guidelines, the Court otherwise excluded from the impeachment process plays a part in its traditional role as interpreter and protector of the Constitution.8 The House of Representatives must act

within the limits the Constitution has defined; otherwise, the Court, in the exercise of judicial review, can act and has the duty to strike down any action committed with grave abuse of discretion or in excess of jurisdiction.9 c. The Need for Prior Publication The Constitution specifically provides that the House of Representatives must promulgate its rules on impeachment to effectively carry out the purpose of Section 3, Article XI that, together with Section 2, deals specifically with the House of Representatives power of impeachment. To "promulgate" means to publish or to announce officially.10 By law, publication is necessary for a statute, law or rule to become effective;11 Article 2 of the Civil Code provides that laws shall take effect after 15 days following their publication, unless the law provides for another period. Publication is required as a condition precedent to the effectivity of a law to inform the public of the contents of the law, rules or regulations before these enactments take effect and affect the publics rights and interests.12 As a matter of basic fairness, "notice" is required before the publics rights and interests are placed at risk. In constitutional law terms, this is the guarantee of due process.13 We explained in Lorenzo M. Taada, et al. v. Hon. Juan C. Tuvera, etc., et al.14 that the failure to publish a law or rule offends due process; it denies the public knowledge of the laws that affect them and removes the basis for the presumption that every person knows the law. The term "law" covers laws of general, as well as local, application; it embraces legislative enactments as well as executive orders, presidential decrees, and administrative rules. The only exceptions to the rule on publication are interpretative regulations and those that are merely internal in nature, i.e., those regulating only the personnel of an administrative agency and not the public. The impeachment rules do not fall under the exceptions. Like the Monetary Board circulars that do not only interpret but also "fill in the details" of the Central Bank Act, the impeachment rules which interpret, implement and fill in the details of the constitutional

impeachment provisions must also be published.15 Significantly, even the ponencia states that the impeachment rules mandated by Section 3(8), Article XI of the Constitution were intended "to fill the gaps in the impeachment process."16 These rules cannot be considered as internal rules that merely regulate the performance of subordinates and, hence, are exempted from publication. They are rules that gravely affect the rights of impeachable officials; an impeachment conviction results in the public officials removal from office and disqualification to hold any public office in the Philippines. The impeachment rules likewise affect a public right; it is a matter of public interest to uphold standards applicable to public officials in the highest positions in the performance of their duties; they are the balancing measures to ensure that our public officials are continually held accountable in the performance of their functions. The fact that the Constitution itself allows "any citizen" to file an impeachment complaint already draws the public as a party with an interest to protect in the impeachment process. It is a matter of record that the House of Representatives of the 15th Congress has seen it fit and proper to publish the rules of impeachment, although the publication came too late for the proceedings before the . Records show that the Rules of Procedure in Impeachment Proceedings of the Fifteenth Congress (Rules of Impeachment) was published on September 2, 2010. Under Article 2 of the Civil Code, these Rules became valid and binding only on September 17, 2010. However, both parties admit that before September 17, 2010, the two impeachment complaints had already been filed17 and referred to the Justice Committee;18 that it had already held a hearing and voted that both complaints were sufficient in form; and that it had subsequently conducted another hearing and voted that both complaints were sufficient in substance.19 To rebut the petitioners allegation of due process violation for nonpublication of the impeachment rules, the ponencia asserts that the petitioner was fully apprised of the impeachment procedure and had even invoked the rules. This justification, however, cannot fully suffice to do away with full publication.20 Compliance with the requirements of publication cannot be excused based on allegations that the party or parties involved had been notified of the existence of the rules.21 In National Association of Electricity Consumers for Reforms v. Energy

Regulatory Commission,22 the participation of the parties involved in a previous public consultation and their submission of comments on the proposed rules did not do away with the requirement to publish these rules before they could take effect. The plain and obvious reason for this ruling, of course, is that the binding effect of laws, rules and regulations cannot be made to depend on the actual knowledge of their terms by the affected individuals and entities. The fact of publication assumes, by legal fiction, that all affected parties have been notified and are aware of applicable laws, rules and regulations; thereafter, the published enactments govern affected parties and their actions. According to the ponencia, publication is not required since "promulgation" is not the same as "publication"; she alludes to certain legal provisions on the Judiciarys issuance of judgments where the "promulgation" of orders or decisions does not require publication. The ponencia further cites National Association of Electricity Consumers for Reforms23 as justification. The comparison of impeachment rules with court rulings is far from apt. Court rulings are pronouncements by the judicial branch of government on specific cases affecting specific parties on defined issues. As a rule, these rulings affect only the immediate parties to the case and their successors-in-interest;24 hence, the public has no immediate interest that may be directly affected, and need not be informed about the court rulings. In contrast, laws, rules and regulations, as a rule, affect the public in general and for this reason, they must be brought to the attention of the public. This reason underlies the rule on publication under Article 2 of the Civil Code and the rule under the complementary Article 3 that ignorance of the law excuses no one from compliance with its terms. These provisions fully apply to impeachment rules as these rules affect everyone the impeachable officials; the House of Representatives itself as the constitutional body charged with the initiation of the impeachment process; the members of the House of Representatives; the citizenry who can bring impeachment complaints; and the public at large who have a stake in the due performance of duties by their public officers.

From these perspectives, the term "promulgation," as used by the courts with respect to its decisions and rulings, cannot be directly compared and equated with "promulgation," as used with respect to laws and other enactments passed by the legislature; the latter require publication before they become fully effective. Notably, the Judiciary itself is not exempt from the obligation to publish rules that bind the public in general before these rules acquire binding effect. The Supreme Court publishes its procedural rules because they affect the litigating public; the Rules of Court requires the element of publication in "in rem" cases where court rulings are intended to bind the public in general. Incidentally, the ponencias cited National Association of Electricity Consumers for Reforms case25 cannot be used to support the proposition that promulgation excludes the act of publication. In this case, the Court did not come up with a categorical statement that promulgation should be construed to exclude publication. Even if the term "promulgation"26 had been loosely used, the focus of the case was on the need to publish rules before they become effective. The ponencia also points out that even if Section 3 of Article VII of the Constitution requires the promulgation of rules for the canvassing of election certificates, the House of Representatives did not publish these rules.27 This justification likewise carries very little supportive weight as the failure of the House of Representatives to publish rules that, by law, must be published does not do away with the publication requirement. I particularly reject the ponentes statement that there is no other single formal term in the English language to appropriately refer to an issuance without the need of it being published.28 Several terms contradicting this statement immediately come to mind; instead of using the word "promulgate," the words issue, adopt, set forth, establish, and determine may be used, depending on the context. Thus, I cannot give any merit to the ponencias claim. I, likewise, cannot accept the implication from the ponencia that the Constitutional Commission may have used the word "promulgate" in Section 3(8), Article XI in a sense different from its established legal meaning. The members of the Constitutional Commission are legal

experts whose deliberative records this Court did not hesitate to cite as authorities in the earlier Francisco case29 that first ruled on impeachment under the 1987 Constitution. At the time the 1987 Constitution was discussed and passed, Article 2 of the Civil Code and the Taada ruling were already both in place. In both rulings, the general legal usage of the term "promulgation" with respect to laws, rules and regulations denotes "publication." Had a meaning other than this usage been intended, the members of the Constitutional Commission could have plainly so stated, i.e., that publication of the rules on impeachment is not necessary. The reality is that the Constitutional Commission members did not see the need to so state because publication is a given. Significantly, even the members of the 15th Congress who themselves are experts in crafting legislations impliedly recognized the need for publication as they, in fact, did publish their rules on impeachment,30 although their publication was too late for the proceedings of the . Under these circumstances, it requires a considerable stretch of the imagination to claim that the term "promulgate" should be understood to be divorced from the requirement of publication. Even if I were to accept the ponencias position that "to promulgate" simply means "to make known" and not necessarily "to publish," the ponencia does not state how the 15th Congress made its impeachment rules known to the public other than through the publication it undertook31 (which rendered the rules of impeachment effective only on September 17, 2010 or after the Justice Committee had acted on the impeachment complaints). With this omission, the 15th Congress cannot be said to have complied with Section 3(8), Article XI of the Constitution in relation to Article 2 of the Civil Code and with existing jurisprudence on this point prior to September 17, 2010. In Romulo L. Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al.32 we ruled that the Senate must publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed, to sufficiently put the public on notice on the applicable rules.33 As the Court explained then, the Senate is not bound by the rules adopted by the previous Senate. In the same manner, a

succeeding House of Representatives cannot simply adopt the rules of the preceding House of Representatives without publication of the rules or the fact of their adoption. Simple adoption of the rules, without the required publication, leaves the House of Representatives with no effective rules binding on the public. Contrary to the ponencia, the fact that the applicable provision in Neri34 Section 21, Article VI of the Constitution uses the word "publish" instead of "promulgate" does not justify a different interpretation of Section 3(8), Article XI of the Constitution. A justification for the need to publish the rules in aid of legislative inquiries is to protect the witnesses who may be cited for contempt. Impeachable officials and witnesses in impeachment proceedings are no less entitled to the same protection as they are likewise subject to the contempt powers of the House of Representatives in these proceedings. Additionally, impeachable officials stand to be removed from office, prevented from taking any other government post, and made to experience the humiliation that an impeachment necessarily brings. These risks define the standards of fairness an impeachable officer is entitled to in an impeachment proceeding, whether at the House of Representatives or in the Senate. At the very least, duly published and effective rules of impeachment must be in place to afford the official sought to be impeached the fairness that Section 1, Article III of the Constitution demands.35 To be sure, the belated publication of the Rules cannot have the retroactive effect of curing the infirmity that existed before the publication took place; the guarantee of due process is not served by a belated notice as a violation has by then already occurred. Precisely, publication is a condition precedent to the effectivity of the law.36 The ponencia also posits that the lack of publication would not nullify the proceedings taken prior to the effectivity of the impeachment rules, because the 15-day period after publication would run counter to the mandated periods under Section 3, Article XI of the Constitution. I find this argument unpersuasive for two very practical reasons.

First, the due process guarantee does not strictly require that the time gap between the publication and the effectivity of an enactment be fifteen (15) days. The clear terms of Article 2 of the Civil Code show that the House of Representatives has the discretion to specify a period lesser than 15 days before a statute, law or rule becomes effective. Thus, it could have provided for a shorter period if its intent had been to ensure compliance with the impeachment periods imposed by the Constitution. Unfortunately, it did not so provide and this failure cannot now be used as an argument against the application of the publication requirement. Second, three (3) periods regulate the actions of the House of Representatives on the impeachment proceedings. The first is the inclusion in the Order of Business which shall be made within 10 session days from the filing of the impeachment complaint. The second is the three-session-day period within which to refer the complaint to the proper committee. The third is the sixty-session-day period for the committee to report out its actions and recommendations to the plenary. All these are mandatory periods. But of these periods, the first two involve specific actions of the House of Representatives that are required by the Constitution itself and cannot, thus, be affected by the Rules. The committee actions, on the other hand, have been left by the Constitution37 for the House of Representatives to determine and undertake at its discretion, subject only to the requirement of a hearing; to the vote required to decide at the committee; and to the general provisions of the Constitution on the protection of the constitutional rights of the impeachable official. The temporal constitutional limitation is on the period given to the committee to act it must complete its proceedings and report back to the House of Representatives in plenary within 60 session days from the referral. Under the attendant facts of the case where the publication of the adopted Rules of Impeachment came after the impeachment complaints had been referred to the Justice Committee for action, the required 15-day period before it took effect necessarily fell within the mandatory 60-session-day period given to the Committee. Thus, the opportunity to act within the mandatory 60-session-day period was lessened by the 15-day waiting time for the impeachment rules to take effect.

The intrusion of the publication period on the mandatory period for action by the Justice Committee, however, does not necessarily mean that the publication requirement must give way to the constitutional mandatory period because the mandatory 60-sessionday period has not repealed or modified, impliedly or expressly, the publication requirement. No facial repeal is evident from Section 3(8) of Article XI of the Constitution, nor is there any plain intent to do away with the publication requirement discernible from the terms of the constitutional provision. Neither is there any irreconcilable inconsistency or repugnancy between the two legal provisions.38 Thus, no reason exists in law preventing the two legal requirements from standing side by side and from being applied to the attendant facts of the case. An important consideration in the above conclusion relates to the length of the respective mandatory periods. The Justice Committee is given 60 session days (i.e., not only 60 calendar days) within which to act, while the period involved under Article 2 of the Civil Code is 15 calendar days. Under these terms, the simultaneous application of the two requirements is not an impossibility, considering especially that the Justice Committee has control over the impeachment proceedings and can make adjustments as it sees fit to ensure compliance with the required 60-session-day period. Under the given facts of the present case, the House of Representatives had ample time to pass and publish its rules on impeachment soon after it convened, given particularly that its action was merely to adopt the Rules of Impeachment of the 14th Congress. However, it chose not to undertake any immediate publication. The House of Representatives, too, could have provided in its adopted Rules of Impeachment for an effectivity period of less than the 15 days that Article 2 of the Civil Code generally provides, as provided by this Article itself. This was not also done; thus, a tight time situation resulted for the Justice Committee. This tight timeline, however, is not an argument or justification to defeat the publication requirement as this requirement cannot be defeated by the negligence or inaction of a party burdened with the duty to publish. A saving grace in this case is that the full 60-sessionday period has not lapsed counting from the time the impeachment

complaints were referred to the Justice Committee. d. Consequence of Failure to Publish In light of the House of Representatives initial failure to publish its impeachment rules, all the proceedings prior to the effectivity of the subsequently-published rules must necessarily be void for violation of due process. This is a conclusion the Court cannot shy away from; it must, as a duty, declare the nullity of laws, rules and regulations affecting individual rights that are not published. This is not the first time, in fact, that this Court will so act; jurisprudential history is replete with instances of laws, rules and regulations that the Court has voided for lack of the required publication.39 As the present case stands, no discernable reason exists not to apply the fundamental rule on publication. For clarity, nullity applies to all the proceedings so far taken before the Justice Committee. These are the hearing on the sufficiency of form and the vote thereon taken on September 1, 2010, and the hearing on the sufficiency of the substance and the vote thereon taken on September 7, 2010. All other committee actions necessarily drew their strength from these early actions and are, therefore, affected also by the lack of publication. The invalidity does not attach to actions taken by the House of Representatives itself i.e., the inclusion in the Order of Business and the referral to committees as these are specific actions taken pursuant to the terms of the Constitution. Given that published rules of impeachment now exist and have been effective starting September 17, 2010, nothing should now prevent the House of Representatives from resuming its proceedings from its last valid action the Speakers referral of the impeachment complaints to the Justice Committee which can now undertake its constitutional role on impeachment. II. The One-Year Bar Rule My second point of disagreement with the ponencia is on the interpretation of Section 3(5), Article XI of the Constitution (the oneyear bar rule) which states that: No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

As explained by Mr. Justice Adolfo S. Azcuna in his Concurring Opinion in Francisco,40 "the purpose of this provision is two-fold: to prevent undue or too frequent harassment; and to allow the legislature to do its principal task of legislation." I highlight these purposes as I believe that they should drive our interpretation of the above-quoted Section 3(5), Article XI of the Constitution. a. The Contending Positions The petitioner argues that the filing alone of an impeachment complaint initiates an impeachment proceeding and the referral of the complaint is already the "initial action" taken by the House of Representatives. Hence, no other impeachment complaint can be filed within a year counted after the filing of the first impeachment complaint. The private respondents the proponents of the second impeachment complaint (Reyes group) argue that the petitioner may invoke the one-year bar only after a referral to the committee (in accordance with Francisco), or at some point between the conclusion of the committee report and the transmittal of the Articles of Impeachment to the Senate. The Office of the Solicitor General (OSG), for its part, specifically posits that an impeachment proceeding is initiated only when the House of Representatives disposes the impeachment complaint "by the vote of at least one-third of all the members of the House,"41 i.e., through a disposition against the impeachable officer.42 The OSG and the Reyes group commonly ask, however, for a reexamination of Francisco43 on the ground that its interpretation of Section 3(5), Article XI of the Constitution has rendered the impeachment mechanism "virtually, if not completely, ineffectual"44 since it allows public officials to escape constitutional accountability by simply obtaining the filing of a frivolous impeachment complaint to preempt the filing of a meritorious one.45 The ponencia declined to adopt either position and applied the Francisco46 ruling that the filing and the referral of the impeachment complaint to the proper committee "initiated" the impeachment proceedings and triggered the operation of the one-year bar rule.

I disagree with these positions. Nevertheless, as the OSG did and as the Reyes group reflected in their positions, I believe that our ruling in Francisco47 must be re-examined, particularly its interpretation of what the constitutional proscription against the initiation of more than one impeachment complaint within a year covers. b. The Facts of Francisco Francisco48 is inevitably the starting point of discussion of the oneyear bar rule, if only because this case definitively ruled on the interpretation of the word "initiate" which this Court determined with finality to be the acts of filing and referral of the impeachment complaint to the proper House committee. In Francisco,49 the following facts transpired: 1. On June 2, 2003, President Estrada filed an impeachment complaint (the first complaint) against Chief Justice Davide and seven other associate justices. 2. On August 5, 2003, the first complaint was referred to the Justice Committee. 3. On October 13, 2003, the Justice Committee ruled that the first complaint was "sufficient in form," but voted to dismiss it on October 22, 2003 for being insufficient in substance. The Committee Report, however, was never submitted to the House of Representatives in accordance with Section 3(2), Article XI of the Constitution. 4. On October 23, 2003, Reps. Gilbert C. Teodoro and Felix William B. Fuentebella filed with the Secretary General a second impeachment complaint, which was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least 1/3 of all the Members of the House of Representatives. This was followed by a deluge of petitions filed before the Court seeking to restrain the House of Representatives from further acting on the second complaint or for the Court to dismiss those petitions mainly on the ground that the Court has no jurisdiction. Notably, under these facts, at the time the second impeachment complaint was filed, several acts in the impeachment process had already been completed i.e., the first complaint had been filed and

referred to the proper committee; the complaint had been determined to be sufficient in form but was also found to be insufficient in substance. At that point, the Justice Committee only had to submit its report to the House of Representatives, but this was never undertaken. Before any report could be submitted, a second impeachment complaint was filed. Thus, the issue of whether the second impeachment case was barred under Section 3(5), Article XI, arose. The first complaints insufficiency in substance notwithstanding, the Court held (as echoed by the present ponencia) that an impeachment proceeding had already been initiated "by the act of filing of the complaint and its referral to the Committee on Justice,"50 adopting the view of amici curiae Constitutional Commissioners Florenz Regalado and Father Joaquin G. Bernas that the word "initiate" as used in Section 3(5), Article XI of the Constitution, means to file, both adding, however, that "the filing must be accompanied by an action to set the complaint moving." This ruling was primarily directed against the position that the vote of one-third of the House of Representatives in a resolution of impeachment will initiate the impeachment proceedings.51 c. Refutation of the Petitioners Position The petitioners position that the mere filing of an impeachment complaint should serve as a complete trigger for the one-year bar rule is a repetition of the view that the Court rejected in Francisco. 52 The petitioner obviously equated a "verified complaint for impeachment" that may be filed under Section 3(2) of Article XI, to the "impeachment proceedings" that may not be "initiated" against the same official more than once within a year under Section 3(5) of the same article. As in Francisco,53 the ponencia favorably considers the reasoning of Father Bernas that a "proceeding" before the House of Representatives (as distinguished from a "case" which is the "legal controversy that must be decided by the Senate) is progressive in character, having a beginning, a middle and an end. An impeachment "proceeding" begins when a verified complaint is filed and referred to the proper Committee;54 the filing of an impeachment complaint sets off the initial phase of the impeachment proceeding, this phase is not completed and the impeachment proceeding is not fully "initiated"

until the House of Representatives itself initially acts on the impeachment complaint. I completely agree with the ponencia that the petitioners position should be rejected. Aside from the reasoning based on the deliberations of the Constitutional Commission, the petitioners restrictive view unduly limits the peoples right to file impeachment complaints, at the same time that it ties the hands of the House of Representatives the body constitutionally answerable to the electorate by effectively placing the power of impeachment in the hands of random complainants whose acts can preclude or suspend the filing of other impeachment complaints for at least a year. Thus, it is only proper that the act of initiating the impeachment process should go beyond the act of mere filing and should extend to initial action by the receiving entity on the complaint to fully signify that an impeachment proceeding has been "initiated." To what acts the initiation phase shall extend is a point of disagreement with the ponencia and is fully discussed at the appropriate topic below. d. The OSG Position At the other end (in fact, the back-end) of how an impeachment proceeding is "initiated" for purposes of the one-year bar rule is the OSGs position that the back-end is signaled by the favorable vote of a third of the House of Representatives on the intrinsic merits of the impeachment complaint. This view disagrees with the ponencia that the referral by the House of Representatives of the complaint to the proper committee completes the initiation phase of the impeachment process. Independently of the reasons propounded in Francisco,55 I reject this submission for two reasons. First, to "impeach" simply means "to formally charge with a violation of the public trust"56 or "to bring an accusation against."57 The power of impeachment is lodged with the House and not with the Senate; the power of the Senate is to "try and decide an impeachment case." Once one-third of the House of Representatives membership votes in favor of impeachment, the public official is effectively impeached i.e., indicted of an impeachable offense. At this point, the

impeachment proceedings before the House of Representatives (again contrasted with the totality of the impeachment "case") already terminates; and an entirely different proceeding begins i.e., the trial of the impeachment case at the Senate. Second, the OSGs interpretation disregards the purposes of the oneyear bar to the point of defeating these purposes. If we pursue the argument to its logical conclusion, as long as the one-third vote required to "impeach" has not been obtained, then the House of Representatives and the Justice Committee can continuously receive and entertain impeachment complaints; only a favorable House of Representatives vote (effectively, the endorsement of the Articles of Impeachment to the Senate) can serve as a bar to another impeachment complaint within one year. This position, to be sure, is a prescription for the successive filing of impeachment complaints and "hearings" held one after another, terminated only by the successful consideration by the House of Representatives of one of the filed complaints. The possibility of multiple impeachment complaints is exemplified, not only in the present case, but in the records of previous impeachment complaints before the House of Representatives under the present Constitution. I do not believe that this impeachment scenario is what the Constitution intended when it provided for the one-year bar rule; the operation of this scenario cannot but have the effect of causing undue delay and prejudice to legislative work. To state the obvious, undue harassment of the impeachable official shall also result, again to the prejudice of public service. All these run counter to the purposes of Section 3(5), Article XI of the Constitution. e. Revisiting Francisco All the above having been said, the ponencias conclusion of strictly adhering to the Francisco58 ruling leaves much to be desired as the ruling still leaves open the more specific question of what completes the initiation process in light of the established purposes of the oneyear bar rule. An examination of Francisco shows that it extensively discussed the constitutional meaning of "initiation" in Article XI by relying heavily on

the records of the Constitutional Commission.59 Yet, it was eerily silent on the purposes behind Section 3(5) which was the provision directly in issue. Basic in construing a constitution is the ascertainment of the intent or purpose of the framers in framing the provision under consideration. This should include, aside from the reason which induced the framers to enact the particular provision, the particular purpose/s intended to be accomplished and the evils, if any, sought to be prevented or remedied. Constitutional interpretation must consider the whole instrument and its various parts in a manner that would align the understanding of the words of the Constitution with the identified underlying intents and purposes.60 Aside from discussing the proceedings of the Constitutional Commission in considering the initiation aspects of an impeachment proceeding, the Court in Francisco61 gave the word "initiate" its ordinary meaning, i.e., "to begin, commence, or set going" in accordance with the principle of verba legis. Thus, the word "initiate" in Section 3(1), Article XI of the Constitution was read to mean to commence a "case" that the Senate shall consider after the transmittal of the Articles of Impeachment on the one-third vote of all the members of the House of Representatives affirming the favorable resolution of the Justice Committee or overriding it. The majority in Francisco,62 however, never discussed the meaning of "initiate" for purposes of the one-year bar based on the proceedings of the Constitutional Commission. Only the Concurring Opinion of Mr. Justice Adolfo Azcuna referred to the purposes of Section 3(5), Article XI of the Constitution, as reflected in the Constitutional Commission deliberations. He quoted the proceedings as follows:63 MR. VILLACORTA. Madam President, I would just like to ask the Committee three questions. On Section 3, page 2, lines 12 to 14, the last paragraph reads as follows: "No impeachment proceedings shall be initiated against the same official more than once within a period of one year." Does this mean that even if an evidence is discovered to support another charge or ground for impeachment, a second or subsequent

proceeding cannot be initiated against the same official within a period of one year? In other words, one year has to elapse before a second or subsequent charge or proceeding can be initiated. The intention may be to protect the public official from undue harassment. On the other hand, is this not undue limitation on the accountability of public officers? Anyway, when a person accepts a public trust, does he not consider taking the risk of accounting for his acts or misfeasance in office? MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking. Impeachment proceedings take a lot of time. And if we allow multiple impeachment charges on the same individual to take place, the legislature will do nothing else but that.64 (Emphases supplied). Without doubt, the silence of Francisco65 (and of the present ponencia) on the purposes of Section 3(5), Article XI of the Constitution contributes in no small measure to the clamor for a revisit to Francisco66 since it did not address the intent of the one-year bar rule, yet laid down a doctrine on the provision that this intent produced. e.1. An Alternative View of Francisco e.1.i. The Back-End of the Initiation Process I agree with the conclusion of Francisco67 on when an impeachment proceeding starts. Indeed, the initiation phase of the proceeding cannot start at any point other than the filing of the impeachment complaint. I cannot but agree, too, that the initiation phase is not confined solely to the fact of filing; the House of Representatives as the receiving entity has to intervene for a complete and meaningful initiation process. But beyond these, the question arises up to what point does the initiation phase of the impeachment proceedings end considering the totality of Section 3, Article XI of the Constitution? This question must inevitably arise since the presented reasons either from the amici curiae or the deliberations of the Constitutional Commission on Section 3(1) and Section 3(3), Article XI of the

Constitution do not present ready answers. For one, the term "initiate" under Section 3(1) does not carry the same sense as the term "initiated" in Section 3(5); the first refers to the power of the House of Representatives to impeach as against the power of the Senate to try an impeachment case brought forward by the House of Representatives, while Section 3(5) specifically refers to the internal proceedings of the House of Representatives. I submit on this point i.e., on the outer limit or back end of the initiation phase of the impeachment proceedings that the intent and purpose behind Section 3(5), Article XI of the Constitution must necessarily come into play. The complete interpretation of the Section must consider the point beyond which another impeachment complaint shall constitute undue harassment against the impeachable official, as well as the point that should serve as a cut-off to ensure that the House of Representatives is not unduly taken away from its mandated lawmaking activities. For a birds eye view of the impeachment process at the House of Representatives, the proceedings run as follows: a. A Member of the House files or endorses a verified impeachment complaint; b. The verified complaint is included in the Order of Business of the House of Representatives; c. The House of Representatives refers the verified complaint to the proper committee; d. The committee determines the sufficiency in form and substance of the verified complaint and submits its recommendations to the House of Representatives.68 i. If the Committee determines that the complaint is insufficient in form, it shall return the complaint to the Secretary General with a written explanation of the insufficiency. ii. If the Committee finds the complaint insufficient in substance, it shall dismiss the complaint and make the proper report to the House of Representatives in plenary. (If the House of Representatives

disapproves the finding of insufficiency, thus effectively deciding that the impeachment complaint is sufficient, then it returns the complaint to the Committee for the proceedings described below.) e. After a finding of sufficiency, the committee proceeds to require the respondent to answer and to hear the merits of the complaint. i. If the committee finds that the complaint lacks merit, it shall submit to the House of Representatives a resolution of dismissal. A vote of 1/3 of the House of Representatives overrides the resolution, in which case the committee shall prepare the Articles of Impeachment. f. The House of Representatives in plenary considers the committees favorable recommendation expressed through a resolution setting forth the Articles of Impeachment. By a vote of at least 1/3 of the House of Representatives, the Articles of Impeachment shall be endorsed to the Senate for trial. i. If the 1/3 vote on the resolution on the Articles of Impeachment is not attained, then the complaint is dismissed and the impeachment proceedings end. e.1.ii. The Ponencias Deficiencies The ponencia demarcates the referral by the House of Representatives of the impeachment complaint to the proper committee as the outer or back end limit of the initiation phase apparently because referral is the initial action of the House of Representatives action on the matter. The appropriate point, however, cannot be based solely on the first overt action the House of Representatives takes, if the purposes of the "initiation" of the impeachment complaint are to be respected. Specifically, the purpose and intent of Section 3(5), Article XI of the Constitution, as gleaned from the word "initiated" and the one-year bar rule, must be considered. I believe that on this point, the ponencia made an incomplete consideration that should be corrected. e.1.iii. The One-Year Bar Rule and Its Purposes The one-year bar rule and its purposes and effects, once considered, unavoidably introduce into the word "initiate" the idea of knowing and

meaningful action sufficient to have the effect of preventing the filing of another impeachment complaint within one year. The import of what the bar signifies can be gleaned from the importance the Constitution gives public accountability and the impeachment process; public accountability is a primary constitutional interest that merits no less than one complete and separate Article in the Constitution, while impeachment is one of the defined means of holding the highest government officials accountable. They are prominent, not only in the Constitution, but in the public mind as well. In this light, the bar against impeachment that Section 3(5), Article XI of the Constitution speaks of cannot simply be confined to the mechanical act of filing an impeachment complaint. As every citizen enjoys the right to file a complaint, a bar triggered by the mere physical act of filing one complaint is practically a negation of the granted right without a meaningful basis. Thus, the initiation of an impeachment complaint, understood in the sense used in Section 3(5), Article XI of the Constitution, must involve a process that goes beyond this physical act of filing; initiation must be a participatory act that involves the receiving entity, in this case, the House of Representatives. To be consistent with the nature and effects of the bar, the participation of the House of Representatives in the initiation phase must itself be meaningful; it must be an act characterized by the exercise of discretion in determining that the filed impeachment complaint is valid and can be the basis for the impeachment proceedings to follow, subject to supporting and duly admitted evidence. To state the obvious, only a valid impeachment complaint should serve as a bar; otherwise, no meaningful balance would exist between the impeachment and the bar that can frustrate it. The receipt by the House of Representatives of the filed impeachment complaint, like the filing of the complaint, involves a mechanical act that leaves the House be the basis for the impeachment proceedings to follow with no discretion to exercise; a filed complaint must be received as the filing of the complaint is in the exercise of a right granted by the Constitution. In like manner, the initial overt action by the House of Representatives the referral of the impeachment complaint to the appropriate committee is no

different from the prior act of receiving the complaint. It is essentially a mandatory act that the Constitution commands. In fact, the act of receiving an impeachment complaint cannot really be divorced from the act of referral since both acts are products of constitutional directives couched in the mandatory language of Section 3(2), Article XI of the Constitution. The next action following the referral of the impeachment complaint to the Justice Committee is the latters consideration of the complaint for sufficiency in form and substance. The determination of sufficiency is essentially a test for validity and is the first opportunity for a meaningful action, involving the exercise of discretion, that would justify the imposition of a bar. It is at this level, with the complaint declared as valid, that impeachment proceedings can be fully recognized to be validly initiated. From this perspective, the Francisco69 ruling while essentially referring to aspects of the initiation phase of the impeachment proceedings does not fully cover its complete initiation phase. The act of referral that passed Franciscos70 approval is a purely mechanical act that does not consider the validity of the complaint and the exercise of discretion in the determination of its validity as essential elements. At the core, Francisco71 is incomplete because it did not consider the purposes of Section 3(5), Article XI of the Constitution. e.1.iv. The Undue Harassment Purpose From the perspective of the purposes of the one-year bar rule, it should be noted that up to the point of the referral by the House of Representatives, nothing is expected to be done by the public official against whom the complaint is filed. In fact, both the Constitution and the impeachment rules do not require that the complainant furnish the official sought to be impeached a copy of the verified impeachment complaint. Only after the Justice Committee finds the complaint sufficient in form and substance that the respondent official is formally furnished a copy of the verified complaint. It should be considered, too, that the mere filing of an impeachment complaint is not per se an act of harassment. The filing of an

impeachment complaint is a remedy that the Constitution itself provides and defines. The concept of harassment only enters the picture in any subsequent complaint filed; the Constitution itself bars a second complaint within a year from the initiation of the first complaint on the presumption that the second complaint only serves to harass an impeachable officer. Since "undue harassment" is practically a legal reason or justification for the one-year bar rule, it can only be understood in terms of the legal effects that the filing of an impeachment complaint carries with it. As against the impeachable official against whom a complaint is filed, legal effects start only from the time a valid complaint is recognized. The mere referral of a complaint by the House of Representatives to the proper committee does not in any way legally affect the public official against whom a complaint is filed; at this point, he/she is only a passive participant in the proceedings a person named in a complaint that may not even prosper. Legal effect takes place only when the complaint is found valid for sufficiency in form and substance, and the public official is formally furnished a copy and is required to answer. At this point i.e., when the House of Representatives, through its appropriate committee, has exercised its discretion in taking concrete action against an impeachable public official a valid complaint can be said to have been formally recognized by and fully "initiated" in the House of Representatives. It is at this point, too, that the constitutional intent of preventing undue harassment of an impeachable officer is triggered. Beyond this point, a second impeachment complaint, whether valid or invalid, becomes too many for an impeachable official to face within a year. e.1.v. Interference in Lawmaking From the perspective of interference in the House of Representatives proceedings, note that the determination of sufficiency of the verified complaint in form and substance requires committee action but not any hearing where the respondent official must be present as a matter of due process. Sufficiency in form only requires a facial consideration of the complaint based on the mandated formal requirements.

The Constitution requires the bare minimum of verification of the complaint, and the allegation that it is filed by a Member of the House of Representatives or the endorsement by a Member if the complaint is filed by a citizen. Additionally, following the Rules of Criminal Procedure of the Rules of Court72 that applies as suppletory rules, the form should be appropriate if a proper respondent, occupying an office subject to impeachment, is named in the complaint, and if specific acts or omissions are charged under one of the grounds for impeachment defined by the Constitution. The complaint should be considered sufficient in substance if the acts or omissions charged are appropriate under the cited grounds and can serve as basis to hear and to bring the Articles of Impeachment forward to the Senate. It is at this point that the Justice Committee can determine, as a matter of substance, if the impeachment complaint is one that because of its validity can serve as a bar to a second complaint within a one-year period. Notably, all these would only require the examination of the verified complaint and whatever component annexes it may contain, without need for any formal hearing or any explanation from the respondent whose opportunity to explain and dispute the case against him/her only comes after an Answer. It is at this hearing before the Justice Committee that the determination of "probable cause" transpires. Incidentally, the Constitution expressly requires that there be a hearing before the Justice Committee submits its resolution on the Articles of Impeachment. Notably, too, the Constitution requires a hearing only at this point, not at any other stage, particularly at the determination of the sufficiency in form and substance stage, although no law prohibits the Justice Committee from calling the parties to a "sufficiency" hearing. Up until the determination of the validity of the complaint in form and substance, all of which are internal to the Justice Committee, interference on the lawmaking part of the House of Representatives can be seen to be negligible. The records of the present Justice Committee themselves show that it devoted only two meetings to determine the sufficiency of the complaint in form and substance.

Thus, from the point of view of both possible undue harassment effects and interference in the lawmaking activities of the House of Representatives, no justification on these grounds exists to restrict the back-end or outside limit of the initiation phase of the impeachment proceedings to the referral of the verified complaint to the Justice Committee. In fact, the nature of a referral as a mandatory and non-discretionary action of the House of Representatives dictates that the initiation phase be extended beyond this point. The appropriate point that serves both the "undue harassment" and "interference in lawmaking" purposes of Section 3(5), Article XI of the Constitution is when the impeachment complaint is determined to be valid. Beyond that point, the possibilities of undue harassment and interference in lawmaking become real. e.1.vi. From Prism of Experience and Practical Application Admittedly, the alternative view dictates a result different from the result the Court arrived at under the facts of Francisco;73 with the dismissal of the first impeachment complaint for insufficiency in substance, no complaint stood to trigger the one-year bar rule so that the second complaint should have been recognized. But this consequence should not deter the Court from reconsidering its position; experience in impeachment cases from the time of Francisco74 has shown that this ruling has not served the overall purposes of impeachment at all. As the OSG argued, the Francisco ruling can indeed encourage naughty effects; a meritorious impeachment case can effectively be barred by the filing of a prior unmeritorious impeachment complaint whose mere referral to the Justice Committee already bars the recognition of the meritorious complaint. Its disregard of the purposes of Section 3(5), Article XI of the Constitution leaves the impeachment process highly susceptible to manipulation. In contrast, this naughty effect can be minimized with the adoption of the alternative view that fully takes the purposes of Section 3(5), Article XI of the Constitution into account, as the alternative: a. recognizes that the referral is a mandatory non-discretionary act on the part of the Speaker or the leadership of the House of Representatives; all complaints must be referred to the Justice

Committee for its action and recommendation; and b. recognizes that the Constitution grants the Justice Committee the initial discretionary authority to act on all matters of form and substance of impeachment complaints, including the finding and recommendation that a second complaint is barred by the one-year bar rule. To be sure, an unmeritorious complaint can still be filed ahead of time under the alternative view and be recognized as sufficient in form and substance by the Justice Committee in order to bar an expected meritorious complaint. This is a political dimension of the impeachment process that neither this Court nor the public can directly remedy under the terms of the present Constitution. The alternative view, however, would prevent the unilateral refusal at the level of the Speaker or leadership of the House of Representatives to refer the complaint to the Justice Committee on the ground of the one-year bar rule. Once a second complaint is referred, the Justice Committee as the body granted by the Constitution with the initial authority and duty to rule would then have to rule on the applicability of a bar and, subsequently, report this out to the plenary for its consideration. At both levels, debates can take place that can effectively bring the matter of public opinion to the bar where the political act of the House of Representatives can properly be adjudged. The ponencia, incidentally, posits that: Referral of the complaint to the proper committee is not done by the House Speaker alone xxx. It is the House of Representatives, in public plenary session, which has the power to set its own chamber into special operation by referring the complaint or to otherwise guard against the initiation of a second impeachment proceeding xxx. x x x. With respect to complaints for impeachment, the House has the discretion not to refer a subsequent impeachment complaint to the Committee on Justice where official records and further debate show that an impeachment complaint filed against the same impeachable officer has already been referred to the said committee and the one year period has not yet expired xxx. Far from being mechanical,

before the referral stage, a period of deliberation is afforded the House[.] The ponencia added: Allowing an expansive construction of the term "initiate" beyond the act of referral allows the unmitigated influx of successive complaints Worse, the Committee shall conduct overlapping hearings until and unless the disposition of one of the complaints ends with the affirmance of a resolution for impeachment. or the Committee on Justice concludes its first report to the House plenary regardless of the recommendation Each of these scenarios runs roughshod the very purpose behind the constitutionally imposed oneyear bar. (Underlining supplied). With all due respect and as discussed above, these statements disregard the clear wording of the Constitution and the purposes of the one-year bar rule. First, the constitutional directive to refer an impeachment complaint to the Committee is clear and unequivocal; it does not set terms or procedures and provides only for a period. Also, the House of Representatives itself does not appear from the terms of Section 3, Article XI of the Constitution to have the authority at the first instance to undertake any direct action on subsequently-filed impeachment complaints other than to refer them to the proper committee. The House of Representatives, therefore, must refer a filed impeachment complaint to the Justice Committee within the mandated period. Any attempt to read into the Constitution any procedure other than what it clearly provides is to introduce further complications into the impeachment process, and is an intervention inconsistent with the terms of the Constitution. Second, the question that the ponencia has not even ventured to answer is when an impeachment proceeding is initiated in light of the purposes of the one-year bar. As pointed out above, until the Justice Committee finds the impeachment complaint or complaints sufficient in form and substance, no "hearing" is required under the terms of the Constitution and it is pointless to claim that overlapping hearings will take place. The Justice Committee acts as the constitutional sentry

through its power to determine the validity of the complaints form and substance; the judicious exercise of this power is enough to avoid the feared "overlapping hearings." Any subsequent complaint filed while an impeachment proceeding, based on a valid impeachment complaint, is in progress, or within a year from the declaration of the validity of an impeachment complaints form and substance, can only be dismissed for insufficiency of substance as the consideration of its substance is barred by the one-year bar rule. It is in the same light that I find it difficult to fully appreciate the ponencias analogy i.e., the referral of the impeachment complaint is like the burning of the candle wick that ignites, that is, initiates impeachment proceedings. Using the same analogy, lighting a candle unless done deliberately, i.e., with the purpose of lighting the candle in mind, would be no better that a candle lit in the winds way. The purposes of Section 3(5), Article XI of the Constitution must be considered in determining when the initiation phase of impeachment proceedings ends; otherwise, a manipulation of the process can intervene, putting the impeachment process to naught. III. SUMMARY To summarize: a. The House of Representatives properly referred the impeachment complaints filed against the petitioner to the pursuant to the express terms of Section 3(2), Article XI of the Constitution. Accordingly, the referral is valid. b. The proceedings were undertaken without the benefit of fully effective rules on impeachment as required by Section 3(8), Article XI of the Constitution, in relation to Article 2 of the Civil Code. These proceedings violated the petitioners right to due process and, hence, are invalid. c. In light of the Rules of Procedure in Impeachment Proceedings of the Fifteenth Congress, promulgated on September 2, 2010 and which became effective on September 17, 2010, no legal stumbling block now exists to prevent the from taking cognizance of the referred complaints and from undertaking its constitutional role under Section 3, Article XI of the Constitution. d. The initiation phase of impeachment proceedings starts with the

filing of the verified impeachment complaint by any Member of the House of Representatives or by any citizen upon resolution of an endorsement by any member of the House of Representatives. The initiation phase ends when the Justice Committee determines and the House of Representatives approves the sufficiency of the impeachment complaint in form and substance. e. The finding of the validity of the impeachment complaint in form and substance completes the initiation phase of the impeachment proceedings and bars the filing of another impeachment complaint for a period of one year therefrom. f. Any question posed by the filing of separate complaints by two separate parties in the present case is a matter for the Justice Committee and, ultimately, for the House of Representatives, to resolve under the terms of the Constitution and its Rules on Impeachment. In light of the invalidity of the proceedings of the Justice Committee, there is no concrete action that this Court can act upon; the matter, at this point, is not yet ripe for adjudication. On the basis of the foregoing, I vote to GRANT the petition. ARTURO D. BRION Associate Justice Footnotes
1

460 Phil 830 (2003). Section 2, Article XI of the Constitution. Section 3(2), Article XI of the Constitution. Section 3(3), (4) and (6), Article XI of the Constitution. Section 3(5), Article XI of the Constitution. Section 3(8), Article XI of the Constitution. Article III of the Constitution.

IBP v. Zamora, G.R. No. 141284, August 5, 2000, 338 SCRA 81.

Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251, 271.
10

Blacks Law Dictionary, 5th edition.

11

Republic v. Express Telecommunications Co., Inc., 424 Phil 372, 393 (2002); and Pilipinas Kao, Inc. v. Court of Appeals, 423 Phil. 834, 859 (2001). Article 2 of the Civil Code reads: Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.
12

Philippine International Trading Corporation v. Commission on Audit, 368 Phil. 478, 491 (1999).
13

See Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667, 169834 and 171246, April 20, 2006, 488 SCRA 1, 72.
14

230 Phil. 528, 534-535 (1986). Id. Ponencia, p. 19.

15

16

17

Memorandum of the House of Representatives Committee on Justice dated October 26, 2010, pp. 6-7; and Memorandum of petitioner dated October 21, 2010, pp. 4-7. The two complaints were filed on July 22, 2010 and on August 3, 2010.
18

Memorandum of the House of Representatives Committee on Justice dated October 26, 2010, p.7; and Memorandum of petitioner dated October 21, 2010, p. 8. Both complaints were referred to the Justice Committee on August 11, 2010.
19

Memorandum of the House of Representatives Committee on Justice dated October 26, 2010, pp.7-8; and Memorandum of petitioner dated October 21, 2010, pp. 8-16. On September 1, 2010,

the Justice Committee conducted a hearing on the sufficiency in form of both complaints. On September 7, 2010, the Justice Committee conducted a hearing on the sufficiency in substance of both complaints.
20

Ponencia, p. 21.

21

Republic v. Pilipinas Shell Petroleum Corporation, G.R. No. 173918, April 8, 2008, 550 SCRA 680, 693.
22

G.R. No. 163935, February 2, 2006, 481 SCRA 480, 521. Id.

23

24

Padilla and Phoenix-Omega Development and Management Corp. v. Court of Appeals and Susana Realty, Inc., G.R. No. 123893, November 22, 2001, 370 SCRA 218; and National Housing Authority v. Jose Evangelista, G.R. No. 140945, May 16, 2005, 458 SCRA 478479.
25

Supra note 22.

26

Id. at 518 and 522. The term "promulgation" was used alternately in reference to orders and rules.
27

Ponencia, p. 17. It is Section 4(6), not Section 3, Article VII of the Constitution that refers to the promulgation of canvassing rules.
28

Id. at 18. Supra note 1.

29

30

Urbano v. Government Service Insurance System, 419 Phil. 948, 969 (2001); and Corona v. Court of Appeals, G.R. No. 97356, September 10, 1992, 214 SCRA 378, 392, citing Ruben Agpalo, Statutory Construction.
31

Ponencia, p. 18. G. R. No. 180643, September 4, 2008, 564 SCRA 152, 230. Taada v. Tuvera, supra note 14.

32

33

34

Supra note 32. Republic v. Pilipinas Shell Petroleum, supra note 21.

35

36

Philippine International Trading Corporation v. Commission on Audit, supra note 12.

37

Section 3(2), Article XI of the Constitution.

38

See Mecano v. Commission on Audit, G.R. No. 103982, December 11, 1992, 216 SCRA 506; Republic v. Asuncion, G.R. No. l-108208, March 11, 1994, 231 SCRA 230-232; Secretary of Finance v. Ilarde, G.R. No. 121782, May 9, 2005, 450 SCRA 233; and Hagad v. GozoDadole, G.R. No. 108072, December 12, 1995, 251 SCRA 251-252.
39

Securities and Exchange Commission, G.R. No. 164026, December 23, 2008, 575 SCRA 113, 121-123; Republic v. Pilipinas Shell Petroleum Corporation, supra note 21, at 689-694; Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667, 169834, and 171246, supra note 13, at 71-72; Pilipinas Kao, Inc. v. Court of Appeals, supra note 11, at 860-861; Philsa International Placement and Services Corp. v. Secretary of Labor and Employment, 408 Phil. 270, 290 (2001); and Philippine International Trading Corporation v. Commission on Audit, supra note 12.
40

Supra note 1.

41

Memorandum of the House of Representatives Committee on Justice, pp. 78 and 80.

42

This is a step further than the interpretation of the House of Representatives of the 12th Congress of Article XI, Section 3(5) in Francisco. The Rules on Impeachment of the 12th Congress provides that an impeachment proceeding is deemed initiated, among others, on the date the House of Representatives votes to overturn or affirm the findings of the Justice Committee that the verified impeachment complaint is not sufficient in substance. Simply, the House of Representatives disposition of the impeachment complaint need not be against the impeachable officer to "initiate" an impeachment proceeding.

43

Supra note 1. Memorandum of respondents Reyes et al., pp. 30-31.

44

45

Memorandum of The House of Representatives Committee on Justice, pp. 80-83.

46

Supra note 1. Supra note 1. Ibid. Ibid. Id. at 169-170.

47

48

49

50

In Francisco, the Court stated that for Commissioner Regalado, the sponsor of Section 3(5), Article XI, "initiate" means "to file" adding that the act of initiating "included the act of taking initial action on the complaint." Father Bernas argument goes: Briefly then, an impeachment proceeding is not a single act. It is a complexus 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.
51

Id. at 164. Id. Ibid. Id. at 169. Id.

52

53

54

55

56

Blacks Law Dictionary, 8th ed. Websters Third New International Dictionary. Supra note 1.

57

58

I entertain doubts on the completeness of Franciscos arguments in construing the word "initiate"(which the ponencia effectively adopted) in so far as they rely on Commissioner Maambongs observations. The Commissioners remark on the need to be "very technical" on the word "initiation" obviously referred to Section 3(3) of Article XI where the word "initiate" no longer appears, but was read in relation to Section 3(1). The word "initiate" in Section 3(1), however, is used in a different sense, that is, to bring an impeachable officer to impeachment trial in the Senate. The word "initiate" in Section 3(1) is expressly used in the Constitution as a "power" and not with reference to procedure. The same word as used in Section 3(5) was understood in Francisco to mean the "filing and referral to the Justice Committee" for action, which essentially refers to procedure. In this consideration of Section 3(5), its purposes were not taken into account.
59 60

See Civil Liberties v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317.
61

Supra note 1. Ibid. Id. at 1053

62

63

64

2 Record of the Constitutional Commission, p. 282; see also Separate Opinion of Justice Azcuna in Francisco v. House of Representatives, id. at 313.
65

Supra note 1. Ibid. Ibid.

66

67

68

A. COMMITTEE PROCEEDINGS

Section 4. Determination of Sufficiency in Form and Substance. Upon due referral, the Committee on Justice shall determine whether the complaint is sufficient in form and substance. If the committee finds that the complaint is insufficient in form, it shall return the same to the Secretary General within three (3) session days with a written explanation of the insufficiency. The Secretary General shall return the same to the complainant(s) together with the committee's written explanation within three (3) session days from receipt of the committee resolution finding the complaint insufficient in form. Should the committee find the complaint sufficient in form, it shall then determine if the complaint is sufficient in substance. The requirement of substance is met if there is a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee. If the committee finds that the complaint is not sufficient in substance, it shall dismiss the complaint and shall submit its report as provided hereunder. Section 5. Notice to Respondents and Time to Plead. - If the committee finds the complaint sufficient in form and substance, it shall immediately furnish the respondent(s) with a copy of the resolution and/or verified complaint, as the case may be, with written notice thereof and serve a copy of the answer to the complaint(s). No motion to dismiss shall be allowed within the period to answer the complaint. The answer, which shall be under oath, may include affirmative defenses. If the respondent fails or refuses to file an answer within the reglementary period, he/she is deemed to have interposed a general denial to the complaint. Within three (3) days from receipt of the answer, the complainant may file a reply, serving a copy thereof to the respondent who may file a rejoinder within three (3) days from receipt of the reply, serving a copy thereof to the complainant. If the complainant fails to file a reply, all the material allegations in the answer are deemed controverted. Together with their pleadings, the parties shall file their affidavits or counter-affidavits, as the case may be, with their documentary evidence. Such affidavits or counteraffidavits shall be subscribed before the Chairperson of the

Committee on Justice or the Secretary General. Notwithstanding all the foregoing, failure presenting evidence in support of his/her defenses. When there are more than one respondent, each shall be furnished with copy of the verified complaint from a Member of the House or a copy of the verified complaint from a private citizen together with the resolution of endorsement by a Member of the House of Representatives and a written notice to answer and in that case, reference to respondent in these Rules shall be understood as respondents.
69

Supra note 1. Ibid. Ibid. Section 7, Rule 17. Supra note 1. Ibid.

70

71

72

73

74

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION DEL CASTILLO, J.: The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. Oliver Wendell Holmes, Jr. The Common Law, Lecture 1 (1881)

At the heart of this controversy is the interpretation of the rule enshrined in Article XI, Sec. 3(5) of our Constitution, that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." With due respect to my esteemed colleague, Mme. Justice Conchita Carpio Morales, I do not agree that there may be multiple complaints embraced in only one impeachment proceeding. Recall that Francisco, Jr. v. The House of Representatives1 involved two impeachment complaints filed on separate occasions, the first of which had been resolved long before the second complaint was filed. The first complaint was filed on June 2, 2003 by former President Joseph E. Estrada against then Chief Justice Hilario G. Davide, Jr. and Associate Justices Artemio V. Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T. Carpio, Renato C. Corona, Jose C. Vitug, and Leonardo A. Quisumbing. Upon referral to the House Committee on Justice, the Committee ruled that the complaint was sufficient in form, but voted for the dismissal of the complaint for being insufficient in substance. Subsequently, a second complaint was filed on October 23, 2003 against Chief Justice Hilario G. Davide, Jr., accompanied by the endorsement of at least one-third (1/3) of all the Members of the House of Representatives. The Court in Francisco faced this question: when a first impeachment complaint is filed against an impeachable officer, subsequently referred to the House Committee on Justice, and then dismissed, may another impeachment complaint prosper? We said then that from the moment that the first complaint was referred to the proper committee, the filing of a second impeachment complaint was prohibited under paragraph 5, section 3 of Article XI of the Constitution. Though the first impeachment complaint was found to be insufficient in substance, it still served as a bar to a subsequent complaint within the same year. The Court ruled that "initiation [of an impeachment proceeding] 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 x x x" 2 Thus, "[o]nce an impeachment complaint has been initiated, another

impeachment complaint may not be filed against the same official within a one year period."3 It was on that basis that the Supreme Court invalidated Sections 16 and 17 of the Rules of Procedure in Impeachment Proceedings of the 12th Congress, and declared that the second impeachment complaint filed against Chief Justice Davide was barred under paragraph 5, section 3 of Article XI of the Constitution. The rule seems simple enough, and has since been readily applied. But what of a case where two impeachment complaints are separately filed and then simultaneously referred to the Committee on Justice. Does it then follow that only one proceeding has been initiated? To put it differently, is it possible to have two impeachment complaints but just one proceeding? Mme. Justice Carpio Morales posits that multiple complaints within one proceeding are possible, because the purposes of the one-year ban as enunciated by the framers of our Constitution to prevent harassment of the impeachable officials and to allow the legislature to focus on its principal task of legislation4 reveal that the consideration behind the one-year ban is time and not the number of complaints. Unfortunately, while we are in agreement as to the reckoning point of initiation, I cannot find any reasonable justification for the conclusion that there can be multiple complaints in one proceeding. I posit this view for two reasons: first, it does not appear to be entirely accurate that both complaints were simultaneously referred to the Committee on Justice. Second, even assuming that there was simultaneous referral, upon referral of the First Complaint5 to the Committee, an impeachment proceeding had already been initiated, so as to bar any further proceedings on the Second Complaint.6 As regards the simultaneous referral, as shown in the Congressional records,7 and acknowledged by counsel for the respondents during the October 12, 2010 Oral Arguments (interpellation of Mr. Justice Antonio Eduardo Nachura), it appears that during the House plenary session on August 11, 2010, each complaint was read separately by the Secretary General and individually referred to the Committee on Justice by the Chair.8 Thus there was, strictly speaking, no

simultaneous referral. No doubt this Court should be more concerned with overarching principles rather than the ephemeral passing of minutes or seconds. But even if we were to assume that there was, indeed, simultaneous referral, it would be no less true that the filing and referral of each individual impeachment complaint amounts to the initiation of two separate impeachment proceedings. The word "proceeding" has been defined as "the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment; any procedural means for seeking redress from a tribunal or agency; an act or step that is part of a larger action."9 This is in contradistinction with a "complaint," which is "[t]he initial pleading that starts a[n] x x x action and states the basis for the court's jurisdiction, the basis for the plaintiff's claim, and the demand for relief."10 In Francisco, this Court stated that the impeachment "proceeding" consists of the following 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. x x x11 Here, both the First and Second Complaint separately went through these steps they were filed, referred to the Speaker of the House, included in the Order of Business, referred to the House Committee on Justice, and separately considered by the Committee. In fact, the records bear out that each individual complaint was separately scrutinized to determine whether each was sufficient in form and substance, and the petitioner was required to answer both

complaints. In all respects, there were two proceedings. To summarize: First Complaint July 22, 201012 Risa Hontiveros-Baraquel, Danilo Lim, Felipe Pestao, and Evelyn Pestao

Date of Filing Complainants

Endorsers from the House of AKBAYAN Representatives Hon. Representatives Arlene Bag-ao and Walden Bello

Grounds raised

Betrayal of Public Trust

Second Compla August 3, 20101 Renato Reyes, M Mananzan, Dan Edre Olalio, Ferd James Terry Rid Hon. Representa Colmenares, Ra Teodoro Casino Ilagan, Antonio T Emeranciana A. Betrayal of Publ

1. dismal conviction rate of the 1. the delay prosecuting tho Ombudsman from 2008 onwards Fertilizer Fund S 2. failure to take prompt and immediate action re former 2. the failure t President Arroyo and her husband, General" PNP D Jose Miguel T. Arroyo with regard Paz for violating to the NBN-ZTE Broadband Project taking out of the excess of US$ 3. delay in conducting and declaring the fun concluding the investigation on the Bureau of Custo death of Ensign Philip Andrew Culpable Vio Pestano Constitution 4. decision upholding the legality of the arrest and detention of Rep. 1. the delay Risa Hontiveros-Baraquel by the conducting the criminal Philippine National Police in 2006 filing responsible C 5. failure to conduct an investigation pursuant to the into the PhP1,000,000.00 dinner at the Supreme C Le Cirque in New York Technology Fo

Culpable Violation Constitution

of

the Philippines, et a al.

1. repeated delays and failure to take action on cases impressed with public interest 2. refusal to grant access to public records such as the Statement of Assets Liabilities and Net Worth

Transmittal to the Speaker of July 27, 201014 August 4, 20101 the House Directive regarding inclusion in August 2, 201016 August 9, 20101 the Order of Business Referral by the Speaker of the August 11, 2010 August 11, 2010 House to the Committee on Justice Results of Vote on whether or 39 in favor, 1 against 31 in favor, 9 ag not the complaint was Sufficient in Form (September 1, 2010) Results of vote on whether or 41 in favor, 14 against 41 in favor, 16 a not the Complaint was sufficient in substance (September 7, 2010) These two complaints have, in all respects, been treated separately by the House, and each stands alone. In fact, the complaints have been treated in separate proceedings, as indicated by the fact that there was no identity in the votes received by each complaint.18 To use the analogy of the candle, each matchstick is a separate impeachment complaint, and referral may ignite the wick. But in reality, only one matchstick will cause the candle to melt; the other may feed the flame, but a candle, once lit, stays lit, the second matchstick becomes superfluous. In Shakespeares immortal words, "whats done is done."19 In truth, each matchstick ignites a separate candle, because separate and distinct proceedings are contemplated. But perhaps we need not venture so far for an analogy. Just like in a

regular lawsuit, different parties may prepare their initiatory complaints and file them in court. The Clerk of Court then refers the complaints to the branch for appropriate action. Even if the Clerk of Court refers two complaints to the same branch at exactly the same time, this does not detract from the fact that two proceedings have been initiated, particularly where each complaint alleges different causes of action. And though the branch may hear the two complaints in one hearing, the two proceedings remain separate and distinct. To summarize, notwithstanding simultaneous referral, once the First Complaint was initiated, that is to say, filed and referred to the Committee on Justice, no other proceeding could be initiated against the petitioner. This protection granted by the Constitution cannot be waved away merely by reference to the "layers of protection for an impeachable officer" and the likelihood that the number of complaints may be reduced during hearings before the Committee on Justice. As such, the filing and referral of the First Complaint against the petitioner precluded the Committee on Justice from taking cognizance of the Second Complaint. However, though the Second Complaint is barred by Section 3(5) of the Constitution, the House Committee on Justice should be allowed to proceed with its hearing on the First Complaint. I believe the Members of this Court are well aware of the tension here between the clamor for public accountability and claims of judicial overreach vis--vis the demand that governmental action be exercised only within Constitutional limits. In fact, our work here has been called unjustifiable arrogance by an unelected minority who condescends to supplant its will for that of the sovereign people and its elected representatives.20 Nonetheless, try as we might, we cannot shirk from our duty to "say what the law is."21 Particularly, if one conceives of the law as both the reflection of societys most cherished values as well as the means by which we, as a nation, secure those values, then this Court can do no less than ensure that any impeachment proceedings stand on unassailable legal ground, lest the provisions of our fundamental law be used to work an evil which may not be fully measured from where we stand. ACCORDINGLY, I vote that: (1) the status quo ante order should be

LIFTED; and (2) the proceedings on the First Impeachment Complaint should be allowed to continue. However, proceedings on the Second Complaint are barred by Section 3(5), Article XI of the Constitution. MARIANO C. DEL CASTILLO Associate Justice Footnotes
1

460 Phil. 830 (2003). Id. at 932. Id. at 933.

See Francisco, Jr. v. The House of Representatives (Azcuna, Separate Opinion), id. at 1053, citing the deliberations of the 1986 Constitutional Commission. During said deliberations, Mr. Romulo, in response to queries regarding the one-year limitation, stated: MR. ROMULO: Yes, the intention here really is to limit. This is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking. Impeachment proceedings take a lot of time. And if we allow multiple impeachment charges on the same individual to take place, the legislature will do nothing else but that.
5

Used here to refer to the Verified Complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-Gutierrez filed by Ms. Risa Hontiveros-Baraquel, Mr. Danilo Lim, Mr. Felipe Pestao, and Ms. Evelyn Pestao with the Resolutions of Endorsement filed by Representatives Bag-ao and Bello filed on July 22, 2010.
6

Used here to refer to the Verified Complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-Gutierrez filed by Mr. Renato Reyes, Mo. Mary John Mananzan, Mr. Danilo Ramos and Atty. Edre Olalia with the Resolutions of Endorsement filed by Representatives Colmenares, Casio, Mariano, Ilagan, Tinio and De Jesus filed on August 3, 2010.

House of Representatives (15th Congress of the Philippines), Journal No. 9, August 11, 2010, available online at http://www.congress.gov.ph/download/journals_15/J09.pdf. REFERENCE OF BUSINESS On motion of Rep. Romulo, the Body proceeded to the Reference of Business, and the Chair directed the Secretary General to read the following House Bills and Resolutions on First Reading, which were referred to the appropriate Committees hereunder indicated: xxxx ADDITIONAL REFERENCE OF BUSINESS Verified complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-Gutierrez filed by Ms. Risa Hontiveros-Baraquel, Mr. Danilo Lim, Mr. Felipe Pestano, and Ms. Evelyn Pestano with the Resolutions of Endorsement filed by Representatives Bag-ao and Bello TO THE COMMITTEE ON JUSTICE Verified complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-Gutierrez filed by Mr. Renato Reyes, Mo. Mary John Mananzan, Mr. Danilo Ramos and Atty. Edre Olalia with the Resolutions of Endorsement filed by Representatives Colmenares, Casio, Mariano, Ilagan, Tinio and De Jesus TO THE COMMITTEE ON JUSTICE (Rollo, p. 576)
8

See also, the Congressional Record of the Plenary Proceedings of the 15th Congress, First Regular Session, Volume 1, No. 9, Wednesday, August 11, 2010, available online at http://www.congress.gov.ph/download/congrec/15th/1st/15C_1RS-09081110.pdf. The records indicate that "[t]he Secretary General read the following House Bills and Resolutions on First Reading, and the Deputy Speaker made the corresponding references." [8] The TSN of the Oral Arguments before this Court dated October 12, 2010, pages 146-150 states:

Associate Justice Nachura:

Ah, one final thing, if this Court should decide Francisco, a question I asked Assistant Solic Laragan is that, when there are two complaint second complaint that is [infirm] if the second referred [to] the House Committee, after the fi shall have been referred? [Thus] the second comp now be [infirm] and barred by Francisco.

Ret. Justice Mendoza: Associate Justice Nachura: Ret. Justice Mendoza: Associate Justice Nachura: Ret. Justice Mendoza: Associate Justice Nachura: Ret. Justice Mendoza:

Yes with particular reference to the facts of this c be the second complaint (interrupted) The second complaint (interrupted)

That would have [to] be dropped, if Your Honor p simple reason that in the proceedings of the (interr House . . . House, on August 11 (interrupted). Eleven

2010, the Order of Business. If you look just at Business listed the first complaint filed by Risa Baraquiel and three others ahead of the second co not only that, set or, rather, shows after (interrupted) Order of Business

Associate Justice Nachura: Ret. Justice Mendoza:

title of the complaint, this is the action taken by refer it to the Committee on Justice accompa banging of the gavel, so that if we have to be (inter Technical

Associate Justice Nachura: Ret. Justice Mendoza:

Concerned with, not only our second, ah, minute of what is done, then I would say just looking a there are time difference between the action ta referring the first complaint and the action taken in second complaint which was similarly, read afterw

the Speaker said to the Committee on Justice acc followed by the banging of the gavel to signify the Chair. Associate Justice Nachura: Ret. Justice Mendoza: Associate Justice Nachura: That - that is what?

But But thats not [a] concern and I am sure th did not intend that when it wrote the Francisco rulin

Ah, that is precisely what I asked Assistant Soli Laragan, that it would not [have] been possible to complaints were referred at the same time, becau in plenary would have acted on each individual com Order of Business separately. And the referral tech not have happened at the same time, to the exac the exact second. And so if we were to x x x app very strictly the second complaint would be barred Yes.

Ret. Justice Mendoza:

9

Black's Law Dictionary (9th ed. 2009) (available online at www.westlaw.com).

10

Id.

11

Supra note 1 at 931, adopting the explanation of Fr. Joaquin G. Bernas, S.J.
12

Rollo, p. 91. Id. at 133. Id. at 561. Id. at 563. Id. at 562. Id. at 564

13

14

15

16

17

18

On the question of sufficiency in form, the Minutes of the Meeting of the Committee on Justice held on September 1, 2010, Wednesday,

9:30 AM (Id. at 76-82), provide: xxxx Rep. Farias then moved to declare the first impeachment complaint filed [sic] Risa Hontiveros-Baraquel as sufficient in form. The motion was duly seconded. x x x xxxx With 39 votes in favor and 1 against, the Chair declared the first impeachment complaint filed by Risa Hontiveros-Baraquel as sufficient in form. Rep. Casio also moved that the Committee likewise vote to declare the second complaint file [sic] by Mr. Renato Reyes, et al. sufficient in form. The motion was duly seconded. With 31 members in favor of the motion and 9 members against, the motion to declare the second impeachment complaint sufficient in form was carried. (Id. at 80-81) On the question of sufficiency in substance, the Minutes of the Meeting of the Committee on Justice held on September 7, 2010, Tuesday, 9:30 AM (Id. at 555-560), provide: xxxx Thereafter Rep. Farias repeated his previous motion to find the Hontiveros complaint sufficient in substance, which was duly seconded by Rep. Remulla. The Chairman proceeded with the voting on the motion, and with forty-one (41) members in favor and only fourteen (14) against, the Chairman declared the impeachment complaint of Hontiveros, et al sufficient in substance. Rep. Farias then made a motion to find the impeachment complaint filed by Reyes, et al. sufficient in substance. x x x (Id. at 560) xxxx With forty one (41) votes in favor of the motion, and sixteen (16) against, and one (1) refusal to vote, the Chairman declared the impeachment complaint filed by Reyes, et al. sufficient in substance.

19

Macbeth, act 3, scene 2, line 12.

20

The phrase "counter-majoritarian difficulty" as an issue in constitutional law theory is widely attributed to Alexander Bickels 1962 book entitled The Least Dangerous Branch: The Supreme Court at the Bar of Politics.
21

Marbury v. Madison, 5 U.S. 137, 177 (1803), 1803 WL 893.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION ABAD, J.: The Facts and the Case On July 22, 2010 respondents Risa Hontiveros-Baraquel and others filed with the Secretary General of respondent House of Representatives (the House) a verified impeachment complaint (First Complaint) against petitioner Ombudsman Ma. Merceditas N. Gutierrez for betrayal of public trust and culpable violation of the Constitution. Two members of the House endorsed this complaint. To sum up, the complaint alleges: 1. Betrayal of Public Trust a. The dismal and unconscionably low conviction rates by the Office of the Ombudsman from 2008 onwards; b. The failure to take prompt and immediate action on the complaints filed against former President Gloria Macapagal-Arroyo and her husband, Jose Miguel T. Arroyo, with regard to the NBN-ZTE Broadband Project; c. The inexcusable delay in conducting and concluding an investigation on the death of Ensign Philip Andrew Pestao aboard a Philippine Navy vessel;

d. The decision upholding the legality of the arrest and involuntary detention of Risa Hontiveros-Baraquel by the PNP in March 2006; and e. The failure to conduct an investigation with regard to the P1,000,000 presidential party dinner at Le Cirque Restaurant in New York in August 2009; 2. Culpable Violation of the Constitution a. The repeated failures to take prompt action on cases involving official abuse and corruption in violation of Section 12, Article XI, and Section 16, Article III, of the Constitution; and b. The refusal to grant ready access to public records such as the Statement of Assets and Liabilities and Net Worth in violation of Section 13(6), Article XI and Section 7, Article III of the Constitution. On July 23, 2010 the 15th Congress opened its regular session. Shortly after or on August 3, 2010 respondents Renato M. Reyes, Jr. and others filed with the Secretary General of the House another verified impeachment complaint (Second Complaint) against Ombudsman Gutierrez also for betrayal of public trust and culpable violation of the Constitution. Seven members of the House endorsed the complaint, which alleges: 1. Betrayal of Public Trust a. The gross inexcusable delay in investigating and failure in prosecuting those involved in the anomalous transactions arising from the Fertilizer Fund Scam despite the blatant anomalous transactions revealed in the COA Findings, Senate Committee Report 54 and the Complaints filed with the Ombudsman on the said Fertilizer Fund Scam; b. The failure to prosecute General Eliseo De La Paz for violating BSP Circular 98 (1995), as amended by BSP Circular 507 (2006), in relation to Republic Act 6713, which prohibits the taking out of the country of currency in excess of US$10,000 without declaring the same to the Philippine Customs, despite the public admission under oath by General De La Paz before the Senate Blue Ribbon

Committee; and c. The gross inexcusable delay or inaction by acting in deliberate disregard of the Supreme Courts findings and directive in its Decision and Resolution in Information Technology Foundation of the Philippine, et al. v. Commission on Elections, et al. 2. Culpable Violation of the Constitution a. The repeated failures and inexcusable delay in acting upon matters brought before her office, thus violating Sections 12 and 13(1)(2)(3), Article XI and Section 16, Article III of the Constitution, which mandates prompt action and speedy disposition of cases. On even date, the House provisionally adopted the Rules of Procedure in Impeachment Proceedings of the 14th Congress.1 On August 11, 2010 it simultaneously referred the first and second complaints to the House Committee on Justice (the Justice Committee). During its hearing on September 1, 2010 the Justice Committee found the first and second complaints sufficient in form. On September 6, 2010 Ombudsman Gutierrez filed a motion for reconsideration of the committees finding on the grounds that: 1. Such finding violates Section 3(5), Article XI of the 1987 Constitution which bars more than one impeachment proceeding against the same impeachable officer within a period of one year; 2. The contemplated consolidation of the two complaints also violates Section 3(5), Article XI of the 1987 Constitution and would permit Congress to do indirectly what it is proscribed from doing directly; and 3. The finding of the Justice Committee violates Section 13, Rule 110 of the Rules of Court which provides that a complaint must charge only one offense. The Justice Committee declined to accept Ombudsman Gutierrezs motion for reconsideration for being premature. It advised her instead to just include in her answer the grounds she cited in her motion.

During its hearing on September 7, 2010 the Justice Committee found the two complaints sufficient in substance. On even date, it caused the service of summons and copies of the two complaints on Ombudsman Gutierrez with a directive for her to file her answer to the same within ten days. This prompted her to file the present action, assailing the consti

AVELINO vs. CUENCO

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lawphil

Today is S

Republic of the Philippines SUPREME COURT EN BANC G.R. No. L-2821 March 4, 1949

JOSE AVELINO, petitioner, vs. MARIANO J. CUENCO, respondent.

Vicente J. Francisco for petitioner. Office of the Solicitor General Felix Angelo Bautis Taada for respondent. Teehankee, Fernando, Sunico & Rodrigo; Vera, Montesines Vicente del Rosario as amici curiae. RESOLUTION

In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a vote of six justices against fo

Without prejudice to the promulgation of a more extended opinion, this is now written the denial. The Court believes the following essential facts have been established:

In the session of the Senate of February 18, 1949, Senator Lorenzo M. Taadare q session day, February 21, 1949, to formulate charges against the then Senate Presid was approved.

On February 21, 1949, hours before the opening of the session Senator Taada a Sanidad filed with the Secretary of the Senate a resolution enumerating charges ordering the investigation thereof.

Although a sufficient number of senators to constitute a quorum were at the Senate A.M.), and the petitioner was already in his office, said petitioner delayed his appea A.M. When he finally ascended the rostrum, he did not immediately open the session a copy of the resolution submitted by Senators Taada and Sanidad and in the p

carefully said resolution, after which he called and conferred with his colleagues Sen

Shortly before 12:00 noon, due to the session be opened, the petitioner finally ca Sotto who was confined in a hospital and Senator Confesor who is in the United Stat

Senator Sanidad, following a long established practice, moved that the roll call be di said motion, obviously in pursuance of a premeditated plan of petitioner and his p prevent Senator Taada from delivering his privilege speech. The roll was called.

Senator Sanidad next moved, as is the usual practice, to dispense with the reading o opposed by Senator Tirona and David, evidently, again, in pursuance of the above-m

Before and after the roll call and before and after the reading of the minutes, Senato right to deliver his one-hour privilege speech but the petitioner, then presiding, co reading of the minutes, Senator Taada instead on being recognized by the Chai order the arrest of any senator who would speak without being previously recogniz actions of his follower, Senator Tirona, who was continuously shouting at Senator S would ask for recognition of Senator Taada.

At this juncture, some disorderly conduct broke out in the Senate gallery, as if by Senator Pablo Angeles David, one of the petitioner's followers, was recognized by p session, evidently, again, in pursuance of the above-mentioned conspiracy to muzzle

Senator Sanidad registered his opposition to the adjournment of the session and respondent who moved that the motion of adjournment be submitted to a vote. Anoth

Senator David reiterated his motion for adjournment and herein respondent also re and again moved that the motion of Senator David be submitted to a vote.

Suddenly, the petitioner banged the gavel and abandoning the Chair hurriedly w Senator David, Tirona, Francisco, Torres, Magalona and Clarin, while the rest of th Melencio Arranz, Senate President Pro-tempore, urged by those senators presen session.

Senator Cabili stood up, and asked that it be made of record it was so made th by the petitioner, made it incumbent upon Senate President Pro-tempore Arranz an continue the session in order not to paralyze the functions of the Senate.

Senate President Pro-tempore Arranz then suggested that respondent be desig suggestion was carried unanimously. the respondent thereupon took the Chair.

Upon motion of Senator Arranz, which was approved Gregorio Abad was appointed Secretary, who was then acting as Secretary, had followed the petitioner when the la

Senator Taada, after being recognized by the Chair, was then finally able to delive Sanidad read aloud the complete text of said Resolution (No. 68), and submitted his was unanimously approved.

With Senate President Pro-tempore Arranz again occupying the Chair, after the r Sanidad introduced Resolution No. 67, entitled "Resolution declaring vacant the po designated the Honorable Mariano Jesus Cuenco Acting President of the Senate unanimously approved. Senator Cuenco took the oath.

The next day the President of the Philippines recognized the respondent as acting pr By his petition in this quo warranto proceeding petitioners asked the Court to Philippines senate and oust respondent.

The Court has examined all principal angles of the controversy and believes that thes a. Does the Court have jurisdiction over the subject-matter? b. If it is has, were resolution Nos. 68 and 67 validly approved? c. Should the petition be granted?

To the first question, the answer is in the negative, in view of the separation of pow (Alejandrino vs. Quezon, 46 Phil., 83; Vera vs. Avelino, 77 Phil., 192; Maban constitutional grant to the Senate of the power to elect its own president, which pow over, by the judiciary. We refused to take cognizance of the Vera case even if th senators were alleged affected without any immediate remedy. A fortiori we should a the presiding officer affect only the Senators themselves who are at liberty at an reinstate them. Anyway, if, as the petition must imply to be acceptable, the majority his remedy lies in the Senate Session Hall not in the Supreme Court.

The Court will not sally into the legitimate domain of the Senate on the plea that our even a resolution. No state of things has been proved that might change the tempe law-abiding citizens. And we should not allow ourselves to be stampeded into a r should characterized judicial deliberations.

The precedent of Werts vs. Roger does not apply, because among other reason senators have constituted themselves into two senates actually functioning as such question that there is presently one Philippines Senate only. To their credit be it reco not erected themselves into another Senate. The petitioner's claim is merely that re place in the same one Philippines Senate.

It is furthermore believed that the recognition accorded by the Chief Executive to the ever, to adopt the hands-off policy wisely enunciated by this Court in matters of simila

The second question depends upon these sub-questions. (1) Was the session of th the session validly assembled with twenty two Senators in the morning of February session? Mr. Justice Montemayor and Mr. Justice Reyes deem it useless, for the pre held, as they do, that the Court has no jurisdiction over the case. What follows is the those sub-questions.

Supposing that the Court has jurisdiction, there is unanimity in the view that th continuation of the morning session and that a minority of ten senators may not, by senators from passing a resolution that met with their unanimous endorsement. resolution been approved only by ten or less.

If the rump session was not a continuation of the morning session, was it validly c majority required by the Constitution for the transaction of the business of the Bengzon say there was, firstly because the minute say so, secondly, because at th least fourteen senators including Senators Pendatun and Lopez, and thirdly because Senator Tomas Confesor twelve senators constitute a majority of the Senate of twe declares that a majority of "each House" shall constitute a quorum, "the House: d majority of all the members constitute "the House". (Missouri Pac. vs. Kansas, 63 La between a majority of "the House", the latter requiring less number than the first. Th members of the Senate less one (23), constitutes constitutional majority of the Sena Pablo believes furthermore than even if the twelve did not constitute a quorum, the least, of the absent members; if one had been so arrested, there would be no doubt have been elected just the same inasmuch as there would be eleven for Cuenco, one

In fine, all the four justice agree that the Court being confronted with the practical situ may participate in the Senate deliberations in the days immediately after this deci Cuenco and, at most, eleven will side with Senator Avelino, it would be most injud President of the Senate, that office being essentially one that depends exclusively u the rule of the Senate about tenure of the President of that body being amenable session hereafter held with thirteen or more senators, in order to avoid all controve here about quorum and for the benefit of all concerned,the said twelve senators wh

could ratify all their acts and thereby place them beyond the shadow of a doubt.

As already stated, the six justices hereinabove mentioned voted to dismiss the petitio Separate Opinions MORAN, C.J., concurring:

I believe that this Court has jurisdiction over the case.1 The present crisis in the S intervention of the Court.

Respondent Cuenco cannot invoke the doctrine of non-interference by the courts wit his group of twelve senators to acts as a senate is being challenged by petitioner General ex rel. Werts vs. Rogers et al., Atl. 726; 23 L. R. A., 352). If this group is fou the Constitution, then its proceedings should be free from interference. But if it is proceedings should be voided.

The issue as to the legal capacity of the Cuenco group to act as a senate cann determination of which devolves exclusively upon the Senate. That issue involves validly decided either by the Cuenco group or by the Avelino group separately, for Avelino has decidedly less. And for obvious reasons, the two groups cannot act t Avelino group, possibly to avoid trouble, do not attend the sessions presided by the latter was illegally elected. Upon the other hand, the Cuenco group believing itself as not desiring to make any semblance of admission to the contrary, does not find it co senator of the Avelino group. Then the question arises--who will decide the conflict situation will continue while the conflict remains unsettled, and the conflict will rem intervene. In the meantime the validity of all the laws, resolutions and other measu group will be open to doubt because of an alleged lack of quorum in the body which diverse forms, to the House of Representative and to the other agencies of the g Office. Thus, a general situation of uncertainty, pregnant with grave dangers, is d severe harm to the nation. This situation may, to a large extent, be stopped and cons Senate if only this Court, as the guardian of the Constitutional, were to pronounce th governing the existing conflict between the two groups. And, in my opinion, under th other alternative but to meet challenge of the situation which demands the utmost of As hereinbefore stated, the present crisis in the Senate is one that imperatively calls

As to the legality of respondent's election as acting President of the Senate, 2 adjournment of the session of February 21, 1949, was illegality cannot be coun wherein respondent was elected as acting President of the Senate was illegal be question of a quorum and the roll was called, only twelve senators were presen

senators, and therefore, the quorum must be thirteen. The authorities on the matter a

The constitution of our state ordains that a majority of each house shall constitu consist of 125 members; 63 is a majority and quorum. When a majority or quorum a otherwise. A quorum possessed all the powers of the whole body, a majority of wh Gunn, 50 Kan., 155; 32 P., 470, 476; 19 L.R.A., 519.)

Quorum as used in U. S. C. A. Const. Art. 4 sec. 8, providing that a majority of ea business, is, for the purpose of the Assembly, not less than the majority of the w composed. Vacancies from death, resignation or failure to elect cannot be deducte Justice, 12 Fla. 653.)

The general rule is that a quorum is a majority of all the members and a majority of of the whole. (State vs. Ellington 117 N. C., 158; 23 S. E. 250-252, 30 L.R.A., 532; 53

. . . a majority of each House is necessary to transact business, and a minority ca keeping with the provision of the Constitution permitting a smaller number than a q (Earp vs. Riley, 40 OKL., 340; p. 164; Ralls vs. Wyand, 40 OKL., 323; 138 P. 158.)

The Constitution provides that "a majority of each (house) shall constitute a quorum majority are present the House is in a position to do business. Its capacity to transa the mere presence of a majority, and depend upon the disposition or assent or act majority present. All that the Constitution required is the presence of a majority, and of the House arises. (U. S. vs. Ballin, Joseph & Co., 36 Law ed. 321, 325.)

If all the members of the select body or committee, or if all the agents are assemble minority refuse, or neglect to meet with the other, a majority of those present ma majority of the whole number. In other words, in such case, a major part of the whol a majority of the quorum may act. If the major part withdraw so as to leave no quo general, considered to cease. (1 Dillon, Mun. Corp. 4th ed., sec. 283.)3

Therefore, without prejudice to writing a more extensive opinion, if necessary, I belie not been legally elected as acting President of the Senate. It is true that respond President because he represent the majority of the members now present in Manila upon the present senatorial alignment, he will be elected to said office. But precisel must win his victory in accordance with the Constitution. It is absolutely essential in t strictly and uncompromisingly, on thedemocratic principles consecrated in our Const the future of our political life as a republican form of government under the sovereign

The situation now in this Court is this there are four members who believe that the as against four other member who believe that there was such quorum. Two memb

matter because of their refusal to assume jurisdiction. And, one member is absent f whether or not respondent has been legally elected is, to say the least, doubtful in th doubt, which taint the validity of all the laws, resolutions and other measures that the in the future, can easily be dispelled by them by convening a session wherein thirte therein all that has been previously done by them. This is a suggestion coming from happy heart the movement of this gallant group of prominent leaders campaigning dear country of ours. PERFECTO, J., dissenting:

In these quo warranto proceedings the question as to who among the parties is enti Senate is in issue.

There is no question that up to Monday, February 21, 1949, at the time the controv Avelino was rightful occupant of the position. the litigation has arisen because of t outer and as to respondent's election as acting President of the Senate, on February

Petitioner contends that the proceedings in which a resolution was passed declarin vacant and electing respondent Mariano J. Cuenco as acting President of the Sen session for said day has been properly adjourned, and the twelve Senators who re convene in a rump session, and said rump session lacked quorum, while respon opened by petitioner had not been legally adjournment, the Senators who remained same session, and there was quorum when the position of the President of the respondent was elected as acting President of Senate, to fill the vacate position.

Petitioner's version of the facts, as alleged in his petition, is to the effect that on petitioner opened the session in the Senate session hall, there were twenty two Se Vicente J. Francisco. Fernando Lopez, Emiliano TriaTirona, Pablo Angeles David, S Magalona, Carlos Tan, Olegario Clarin, Melencio Arranz, Mariano Cuenco, Pros Madrigal, Geronima Pecson, Camilo Osias, Carlos Garcia, Ramon Diokno, Jose Ve petitioner Jose Avelino. While the minutes of the preceding session was being read entered the Senate hall to witness the session, became unruly, the repeated effor arms and other peace officers to maintain peace and order notwithstanding. Fights a were fired among the audience. The Senator who spoke could not be heard beca drown their voices or would demeans that some other Senator should take th Pandemonium reigned and it was impossible for the Senate to proceed with its de without grave danger to its integrity as a body and to the personal safety of the mem moved for adjournment until Thursday, February 24, 1949. There being no object February 24, 1949. Thereupon petitioner and nine other Senator namely, Vicente J.

Tirona, Pablo Angeles David, Sulipada Pendatun, Ramon Torres, Enriquez Magalon session hall. Senator Melencio Arranz, President Pro-Tempore of Senate, went up th the chamber, convinced the remaining twelve Senators into a rump session, in which the position of the President of the Senate and electing respondent as Preside pretended to assume the office of president of the Senate and continues to pretend t

Petitioner alleged five grounds to claim that respondent is usurping or illegally ex Senate: 1. Petitioner had adjourned the session of the senate, the adjournment h objection, favorably acted upon; 2. Petitioner had full power to adjourn the sessi Section 8, paragraph (e) of the Rules of the Senate; 3 The ordinary daily session could be called in the Senate on the same day; 4 The President Pr-tempore had no in the cases specified in Chapter I, section 4 of the Rule of the Senate, and none of at the time in question; and 5. The twelve Senators that convened in the rump s business under the Constitution and the rule of the Senate, being less than one-half Senate. Respondent's version of the events as follows:

(a) Since Friday, February 18, 1949, when Senator Lorenzo M. Taada announced a that on Monday, February 21, 1949, he would make use of his one-hour privilege, i filed against the then Senate President, petitioner in this case, on said date. Hou Monday, February 21, 1949, Senators Lorenzo M. Taada and Prospero Sanidad reg Senates a resolution in which serious charges were preferred against the herein pe marked as Exhibit "1" is hereto attacked and made an integral part hereof:

(b) Although a sufficient number of senators to constitute a quorum were at the Sen schedule time for the session to begin, and in spite of the fact that the petitioner deliberately delayed his appearance at the session hall until about 11:35 A.M.;

(c) When finally the petitioner ascended the rostrum, he did not immediately open th Secretary a copy of the resolution submitted by Senator Taada and Sanidad and read slowly and carefully said resolution, after which he called and conferred with his

(d) Shortly before 12:00 noon, due to the insistent requested of Senators Sanidad an petitioner finally called the meeting to order;

(e) Senator Sanidad, following a practice long established in the Senate, moved th evident that with the presence of all the 22 senator who could discharges their fu quorum, but Senator Tirona opposed said motion, evidently in pursuance of a prem and his followers to make use of all sorts of dilatory tactics to prevent Senator Taa the charges filed against petitioner. The roll call affirmatively showed the presence

Francisco, Fernando Lopez, Emiliano Tria Tirona, Pablo Angeles David, Salip Magalona, Carlos tan, Olegario Clarin, Melencio Arranz, M. Jesus Cuenco, Prospe Madrigal, Geronima Pecson, Camilo Osias, Carlos Garcia, Ramon Diokno, Jose Ve Avelino;

(f) Senator Sanidad next moved, as in the usual practice, to dispense with the re likewise opposed by senator Tirona and David, evidently, again, in pursuance of the

(g) Before and after the roll call before and after the reading of the minutes, Senato his right to deliver his one-hour privilege speech in support of the charges agains continually ignored him; and when after the reading of the minutes, Senator Taada the petitioner announced that he would being previously recognized by him, but follower, Senator Tirona, who was continuously and vociferously shouting at Senato of order! . . .," everything the latter would ask the petitioner to recognized the right of

(h) At this juncture, some disorderly conduct broke out in the Senate gallery, as if present were able to maintain order. No shots were fired among the audience, as same time that Senator Pablo Angeles David, one of petitioner's followers, was re adjournment of the session, evidently again, in pursuance of the above-mentioned c speaking;

(i) Senator Sanidad registered his opposition to the adjournment of the session an respondent who moved that the motion of adjournment be submitted to a vote;

(j) Senator David reiterated his motion for adjournment and herein respondent also r and again moved that the motion of Senator David be submitted to a vote;

(k) Suddenly, the petitioner abandoned the Chair and hurriedly walked out of the ses

(l) Without the session being adjournment, Senators David, Tirona, Francisco,To petitioner out of the session hall, while the rest of the senators, as afore-named continue the session abandoned by petitioner, whereupon Senator Melencio Arran and proceeded with the session.

(m) Senator Cabili took the floor and delivered a speech, whereby he asked that it b that the deliberate abandonment of the Chair by the petitioner, made it incum Arranz and the remaining members of the Senate to continue the session in order n the Senate;

(n) Senate President Pro-tempore Arranz then suggested that respondent be desig

suggestion was carried unanimously. The respondent thereupon took the Chair.

(o) Upon motion of Senator Arranz, which was carried unanimously, Gregorio Aba Assistance Secretary, who was then acting as Secretary, had followed the petitioner

(p) Senator Taada, after being recognized by the Chair, was then finally able to del than hours, on the charges against the petitioner contained in the Resolution, attacke immediate consideration and approval ofsaid Resolution. Senator Sanidad reiterate the complete text of said Resolution, and thereafter the same was unanimously appro

(q) With Senate President Pro-tempore Arranz again occupying the Chair, after the Sanidad introduced Resolution No. 67, entitled "Resolution declaring vacant the po designated the Honorable Mariano Jesus Cuenco Acting President of the Senate," made an integral part hereof as Exhibit "2". Put a vote, the said Resolutionwas u abstained from voting;

(r) The respondent having been duly elected as Acting President of the Senate, im session, before Senate President Pro-Tempore Melencio Arranz, and since the exercising the rights and prerogatives appertaining to said office;

(s) From the allegation of the petition, it clearly appears that the petitioner had o decidedly against him, which fact negates the petitioner's assertion that there was n submitted by Senator David;

(t) From the beginning of the session of February 21, 1949, to the allegedadjourn purpose of the petitioner to deprive Senator Taada of his right to take the floor and petitioner; that said petitioner resorted to all means to deprive the Senate of its righ Resolution No. 68, Exhibit "1", and that when the petitioner realized that a majority o session was ready to approved said resolution, the petitioner abandoned the session

(u) The minute of the session held on February 21, Exhibit 1949, a copy of which is hereof as Exhibit "3", show that the petitioner illegally abandoned the Chair while respondent has been duly elected Acting Senate President in accordance with the pr

Respondent alleges further that Senator David's motion for adjournment was obje therefore, could not have been carried; that it is not true that petitioner had the p motion; that the session presided over, first by petitioner and then by responde threatened or intimidated by anybody, and after petitioner abandoned the session co 4:40 P.M.; that there was only one session held on said date; that petitioner's ab impending ouster therefrom constituted a temporaryincapacity entitling the Senate P that there was quorum as, with the absence of Senator Tomas Confessor, whowas

who was seriously ill and confined in the Lourdes Hospital, the presence of at least t despite petitioner's claim that he adjourned the session to February 24, 1949, convin of the Senators and not wanting to be investigated by the specialinvestigation comm against him, the petitioner deliberately did not appear at the session hall on said date

Three special defenses are advanced by respondent: (a) Lack of jurisdiction of the there are only nine Senators who had recognized petitioner's claim against twelve S of confidence in him by voting in favor of his out ouster; and (c) The object of the ac tool of a minority group of ten Senators to impose petitioner's will over and above Senate, to entrench petitionerin power.

In impugning the jurisdiction of the Supreme Court, respondent contends that the involves a purely political question, the determination of which by the Senate (Alejandrino vs. Quezon, 43 Phil., 83; Vera vs. Avelino, 77 Phil., 192) respondent h the Senate by the President of the Philippines and said recognition is binding and co 5 Phil., 87; Severino vs. Governor-General, 16 Phil., 366); the Senate is the only bod shall be its President and petitioner's only recourse lies in said body; and this Cour constitute an invasion and an encroachment upon the powers, rights and prerogat Congress, of which the Senate is a branch.

Upon the conflicting claims of the parties as to the real events, this Court authorized to consider and to weigh said evidence so as to determine the true events, it is only question of jurisdiction raised by respondent.

In attacking the jurisdiction of the Supreme Court respondent alleges, as first gr justiciable in nature, involving, as it does, a purely political question, the determ concerned, the Senate, is binding and conclusive on the courts.

The contention is untenable. In the first place, it begs question. It assumes as premi by the Senate, when the two opposing parties claim that each one of them repr controversy should be allowed to remainunsettled, it would be impossible to determi really represent the Senate.

The question raised in the petition, although political in nature, are justiciable beca precepts, such as the provisions of the Constitution and of the rules of the Senate questions of law form part of the jurisdiction, not only expressly conferred on the prohibition of the Constitution, it cannot be divested.

SEC. 2. The Congress shall have the power to define, prescribe, and apportion the ju deprive the Supreme Court of its original jurisdiction over cases affecting ambassado of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or

court may provide, final judgment and decrees of inferior courts in

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance or re

(2) All case involving the legality of any tax, impost, assessment, or toll, or any penal (3) All cases in which the jurisdiction of any trial court is in issue. (4) All criminal cases in which the penalty imposed is death or life imprisonment. (5) All cases in which an error or question of law is involved.

Because the legal questions raised in this case cannot be decided without decided facts, by the very natureof things, the jurisdiction of the Supreme Court reached the real events.

Respondent alleges that he has been recognized by the President of the Philippines executive recognition is binding and conclusive on the courts. The contention is erro Philippines cannot deprive the Supreme Court of the jurisdiction vested in it by Philippines, in which the Legislature power is vested, cannot deprive the Supreme Co law, much less canthe president of the Philippines, on whom is vested the Execut political hierarchy is of subordinate category to the of the Legislative power, do so. T power to execute them.

The third argument of argument of respondent, although based on truth, has nothing case. It is true that the Senate is the only body that can determine from time who i legal questions are raised in a litigation likein the present case, the proper cour responsibility to decide them. To shirk that responsibility is to commit a dereliction of

Finally, it is alleged that for this Court to entertain the petition, is invade and encroac solely and exclusively appertaining to the Legislative Department, of which the erroneous. The controversy as to thelegality of the adjournment declared by petition resolution declaring vacant the position of President of the Senate, or respondent's and as to whether or not the twelve Senators who remained in the session hall c constitute quorum, are all legal question upon which courts of justice have jurisdiction

From the evidence, it appears that in the session of Friday, February 18, 1949, at th of petitioner, introduced by the Senator Lopez, was being put to vote, Senator Ta negative, alleging as ground damaging facts, supported by several checks, officialhonesty of petitioner. At the same time, Senator Taada announced his inten on Monday, February 21, 1949, formal charges against petitioner and of delivering d

in support of said charges.

On said Monday morning, hour before the opening of the ordinary daily session, Se the Secretary of the Senate a resolution for the appointment of a Committee of thre David, and Mabanag, with instructed to proceed immediately to investigate the serio the document. Said resolution, marked as Exhibit 1 of the respondent's answer, is as follow:

RESOLUTION ORDERING THE INVESTIGATION OF CHARGES FILED AGAIN AVELINO.

WHEREAS, Senate President Jose Avelino, in a caucus of high government off leaders of the Liberal Partyheld at Malacaang palace on January 15, 1949, deliv protection, or, at least, tolerance, of graft and corruption in the government, and p officials as supreme and above the welfare of the people, doctrine under which governmentto exist;

WHEREAS, this speech of Senate President Jose Avelino was given wide public Publication in their issues of January 16 and 18, 1949, as follows:

The senate President defenses the abuses perpetrated by Liberal Party men. H property commission irregularities and the immigration quota scadal as acts of injust "odious." He flayed the National Bureau of Investigation agents for persecuting Libera

"We are not angels", he said. "When we die we all go to hell. It is better to be in hell b no secretary of justice, no secretary of interior to go after us."

Avelino, who is the present President of the Liberal party, ensured the President f mainly responsible for the division of the party into two hostile camps.

Avelino asked the President to "tolerate" if he could not "permit", the abuse of the p saints when in reality we are not?

He stressed that the present investigation being conducted by President Quirino immigration quota rackety has lowered the prestige of the Liberal Party in the eyes memory of the late President Manuel Roxas. "It is a crime against the Liberal Party",

Defining his attitude regarding rights and privileges of those who are in power in th Liberal Party men are entitled to more considerations and should be given allowan abuse their power as all humans are prone to do, they will be given a certain measur

are we in power for?"

Avelino cited the surplus property investigations as an attempt to besmear the me these investigations, the members of Congress are subjected to unjust and emba And what is worse is the fact that these senators and representatives are being pill against them. (Manila Chronicle issue of Jan. 16, 1949).

At last Saturday night's caucus Senate President Avelino for two hours lectured to Pr At the same time he demanded "tolerance" on the part of the Chief Executive by the

The investigations were conducted on vague charges, Avelino claimed. Nothing s Party man. And yet National Bureau of Investigation agents have persecuted top lea That is injustice. . . . It isodious. . . . It is criminal.

Why did you have to order an investigation Honorable Mr. President? If you canno them. What are we in power for? We are not hypocrites. Why should we pretend to b not angels. And besides when we die we all go to hell. Anyway, it is preferable to g no Secretary of Justice, no Secretary of Interior to go after us.

When Jesus died on the Cross. He made a distinction between a good crook and th crooks.

Avelino related the story of St. Francis of Assisi. Athief sought sanctuary in St. Franc convent and ordered St. Francis to produce the wanted thief, St. Francis told the s other way. Avelino then pointed out that even a saint had condoned the sins of a thief. xxx xxx xxx

The investigation ordered by President Quirino, Avelino said, was a desecration of The probe has lowered, instead of enhanced, the prestige of the Liberal Party and its

If the present administration fails, it is Roxas and not Quirino that suffers by it, b continuation of Roxas, Avelino said.

Avelino compared all political parties to business corporations, of which all member Party makes an accounting of its loss profit. The Liberal Party, he said, has practic original capital. Then he mentionedthe appointments to the government of Nacionali Reconstruction Finance Corporation, Nicanor Carag, consulto Madrid; and Vicente F

Tabacco Corporation."(Manila Chronicle issue of January 18, 1949.).

WHEREAS, after the first publication of the said speech in the Manila Chronicle President, in a letter to the said news report was a "maliciously distorted presentat tendentious headlines", and threatened that "unless the proper redness is given to m the necessary steps to protect my reputation and good name";

WHEREAS, the Chronicle Publication not only refuse to retract or make the rectific but on the contrary, in their issue of January 18, 1949, challenged him to take his thr abolished the truth, we are inviting the Senate President to file a libel suit agains publication of their reports on the Senate President speech in the same issue of Janu

WHEREAS, notwithstanding in the considerable length of time that has elapsed, the threat of filing action against the Chronicle Publication, thereby confirming, in effe corruption;

WHEREAS, in open and public session of the Senate on February 18, 1949, there checks totalling P566,405.60, which appears to have come into the possession and had assumed his office;

WHEREAS, the first of the aforesaid check, which is Manager's Check No. M5375 of Bank of New York, drawn on September 24, 1946, in favor of the Senate Presi indorsed by him to his wife, Mrs. Enriqueta C. Avelino, who deposited it in her curren on October 26, 1946;

WHEREAS, the second of the aforesaid checks, which is Manager's Check Handelsbank, drawn on October 21, 1946, in favor of the Senate President in the am to his son, Mr. Jose Avelino, Jr., who cashed it October 22, 1946;

WHEREAS, the third of the aforesaid checks, which is Check No. 37262 of the Nede October 23,1946 by Chung Liu Ching Long & Co., Ltd., a Chinese concern, in favo was indorsed by the Senate President to his wife, Mrs. Enriqueta C. Avelino, who de with the Philippines National Bank on October 26, 1946;

WHEREAS, the fourth of the aforesaid checks, which is Check No. 37268 of the Ne by the aforementioned Chinese concern, Chiung Liu Ching Long and Co., Ltd., in Senate President, was indorsed by him to his wife, Mrs. Enriqueta C. Avelino, who d Philippines National Bank on October 26, 1946;

WHEREAS, of the four checks aforementioned, the one for P196,905.60 was cas Avelino, Jr., on October 22, 1946; while of the three other checks totalling P370,00

President's wife, Mrs. Enriqueta C. Avelino, in her saving and current accounts with 26, 1946, P325,000.00 were withdraw by her on same day;

WHEREAS, in the course of the speech delivered by the Senate President on the flo an attempt to explain the foregoing checks, he refused to be interpolated on the sam and definiteness that it left many doubts unsettled;

WHEREAS, in the case of the check for P312,500.00 the Senate President explan from the sale of surplus beer to cover party obligation is directly contradicted by the declared under oath before the Horilleno Investigating Committee that the said sum the Senate President, who repaid the same within ten days;

WHEREAS, it appears that during the period from December 29, 1945 to April 30, made in the current account of the Senate President's wife Mrs. Enriqueta C. Avelino amount P6,204.86 were deposited before his election to office and the sum of P797,6

WHEREAS, the tax returns of the Senate President do not bear explanation made effect that he and his wife had made substantial amounts in commercial transaction i

WHEREAS, in his said speech of February 18, 1949, the Senate President said tha as the Nacionalistas were prone to commit frauds, it was right for the Liberals to com frauds committed by the opposition;

WHEREAS, the said speech of February 18, 1949 delivered by the SEnate Pres frauds, which justification is a direct attack on the sovereignty of the people and may

WHEREAS, the senate President, as ex-officio Chairman of the Commission o Presidential appointment, including thoseto the judiciary, has abused the preroga instances to interfere with and influence some judge in decidingcase pending befor the judiciaryand jeopardizing the impartial administration of justice;

WHEREAS, the honor, dignity and prestige of the people and of the membersof the immediate investigation of allforegoing; Now, therefore,

1 Be it resolved, To appoint, as they are hereby appointed 2 Committee of three posed of Senator Cuenco, Angeles David and Mabanag, who 4 shall immedia mentioned 5 above, with full powers to compel the attendance of witnesses 6 documents, and other 7 evidence, and to utilized the facilities and the services of s deem necessary, with in 9 structions to render its report and recommendations February 25, 1949.

Adopted, February 21, 1949.

Although a sufficient number of Senators to constitute quorum were already pres o'clock, the schedule time for the daily session to begin, the session was not then o in the hall until about 11:35, the time petitioner ascended the rostrum where, instea for a copy of the resolution introduced by the Senators Taada and Sanidad and, a Senators Angeles David and Tirona and conferred with them.

Only after the insistent requests of Senators Sanidad and Cuenco that thesession be to order shortly before 12:00 o'clock noon.

Senator Sanidad moved that the roll call be dispensed with. Senator Tirona oppose presence of the following twenty two Senators: Vicente J. Francisco, Fernando L David, Salipada Pendatun, Ramon Torres, Enrique Magalona, Carlos Tan, Olegari Cuenco, Prospero Sanidad, Lorenzo Taada, Vicente Madrigal, Geronima Pecs Diokno, Jose Vera, Tomas Cabili, Alejo Manag and Jose Avelino.

Senator Sanidad again moved that the reading of the minutes be dispersed with, but Tirona whose opposition was joined by Senator Angeles David, and the reading of th

Senator Taada repeated took the floor to floor to claim his right to deliver his on charges against petitioner,pursuant to the announcement he made in the session o after the roll call and the reading of the minutes. he wasignored by the Chair and pe arrestof any Senator who speak without having been previously recognized by him recognized the right of Senator Taada to speak, and every time he would make the upon the ground that the requests were out of order.

Meanwhile, commotion and disorder took place in the Senate gallery. Shout were he two fist fight took place. The detonation of a gun shot was heard from outside. Sena by the Chair, moved for adjournment of the session. The motion was objected by moved thatthe motion be submitted to vote. Petitioner, instead of submitting to vote and declared the session adjourned until next Thursday, February 24, 1949, and, t the nine Senators (Vicente J. Francisco, Fernando Lopez, Emiliano Tria Tirona, P Ramon Torres, Enrique Magalona, Carlos Tan, and Olegario Clarin), supporting h eleven supporters, remained in the session hall. Senator Arranz, President Pr rostrum,and called those Senators present to order. Senator Mabanag raised the quorum and the President Pro-tempore ordered a roll call, to which all the twel answered.

The President Pro-tempore declared the presence of quorum and those presentpro Senator Cabili took an made it of record that the deliberate abandonment of the Cha

Senate President Pro-tempore and those remainingmembers of the Senate to contin paralyze the functions of the Senate. Senator Arranz suggested that respondent be d the suggestion was carried unanimously and respondent took the Chair.

Senator Taada delivered his privilege speech, which took two hours on the charge No. 68, Exhibit "1", and moved for the immediate consideration and approval of said read. The motion was seconded by Senator Sanidad, and the resolution was unani Chair to the President Pro-tempore and Senator Sanidad introduced Resolution No.6

RESOLUTION DECLARING VACANT THE POSITION OF THE PRESIDENT OF T HONORABLE MARIANO JESUS CUENCO ACTING PRESIDE

Resolved by the Senate in session assembled, That a quorum exists; that the Honor having abandoned the chair, his position is hereby declared vacant; and that, the H designated Acting President of the SEnate, until further orders from this Body. Adopted, February 21, 1949.

The resolutions unanimously approved, with respondent abstaining from voting. Pu his oath of office inopen session before President Pro-Tempore Arranz and has s rights and privileges of acting President of theSenate.

The above recital of facts is based on our findings on the evidence on record. Fro conclusions are unavoidable. 1. The adjournment declared by petitioner was arbitrary and illegal.

2. After petitioner and the 9 Senators supporting him had walked out from the se holding session and transact business for lack of quorum.

In the following discussion we will express the reasons in support of the above conclu ILLEGAL ADJOURNMENT

A motion to adjourn has the highest precedence when a question is under debate an privilege under all other conditions. Under parliamentary practice, even questions of to it. The motion to adjourn may be made after the "yeas'' and "nays" are ordered reading of the journal. The motion is not debatable and, after the motion is made, intervene before the taking of the vote.

The power to adjourn is one of the exclusive prerogatives of a legislative chamb

individual, without usurpation of the collective prerogatives. It is too tremendous a The functions of the Senate and its opportunity to transact official business cannot b without jeopardizing the high purposes for which a legislative deliberative body is Single-handedindividual discretion on the matter may not mean anything other tha unipersonal tyranny.

There is no provision in the present rules of the Senate which expressly or implied consent of the body or one which authorizes the presiding officer to decree motu parliamentary practice and experience in thiscountry and in the United States of Am not authorize the existence of such a provision.

Petitioner alleges that he ordered the adjournment because the motion of Senator made and met with no objection. If this version of the facts is true, then it was righ because the absence of anyobjection, provided the motion was properly made a properly apprised of the motion, did not object to it, was an evidence of an implied c however, fails to support petitioner's claim.

We are inclined to consider respondent's version to be more in consonance with t adjourn was actually objected to. Senator Taada was bent on delivering a speech h resolution fathered by himself and by Senator Sanidad, which both filed early in t opened. The formulation of said charges had been announced days before,since when he showed photostatic copies of some checks as basis of a part of the ch respondent's group suffered defeat on the approval of the resolution of confiden understandable that respondent's group of Senators, believing themselves to constit time to give a showing of said majority and must have decided to depose petitioner Senate leadership that upon democratic principles rightly belongs to them.

As a showing of eagerness to hurry up the unfolding events that would give them t moved to dispense with the roll call and the reading of the minutes, and had b recognized to take the floor. Senator Taada himself made attempts to deliver his sp

Evidently, petitioner and his supported decided to adopt a blocking strategyto obstru to the investigationof the serious charges made in resolution No. 68, Exhibit 1, and w of the Senate.

This strategy is evidence by the belated appearance of petitioner and his suppo procrastination in opening the session, by taking all his time in reading first the Ta charges against him, and conferring with Senators Angeles David and Tirona and Senate before Senator's Cuenco and Sanidad began urging that the session beopen

Petitioner's allegation that, even without motion from any member, he could adjourn

is not well taken. There is nothing in the rules of the Senate giving petitioner such aut authorizes the Senate President to take measures to stop disorder, but that power do

The circumstances lead us to the conclusion that illegal adjournment and the walk o the session hall had the purpose of defeating or, at least, delaying, action on the pro petitioner and of his impedingouster, by the decisive votes of respondent's group of S The adjournment decreed by petitioner was arbitrary and illegal. QUORUM

There is no controversy that at the session in question there were present in the composing respondent's group, and this fact had been ascertained by the roll call after Senator Mabanag had raised the question of quorum. The Constitution provides:

A majority of each House shall constitute a quorum to do business, but a smaller num compel the attendance of absent Members in such manner and under such penalt Sub-sec. 2 Article VI.)

The majority mentioned in the above provision cannot be other than the majority o words "each House" in the above provision refer to the full membership of each cham

The Senate was and actually is composed of 24 Senators, and a majority of them c half of twenty-four. Nowhere and at no time has one-half even been the majority. Ma half.

We have heard with interest the arguments advanced by respondent's counse constitutional provision does not use the words "of the members" and the theo mentioned in the Constitution refers only to the majority of the members who can be however, nothing in said arguments that can validly change the natural interpret Constitution. "Majority of each House" can mean only majority of the members members cannot be reduced upon any artificial or imaginary basis not authorized by the sound processes of reason. For all the foregoing, we conclude that:

1. The legal and constitutional issues raised by the petitioner in this case, notwithstan are justiciable and within the jurisdiction expressly conferred to the Supreme Court, w prohibition of the Constitution. Should there be analogous controversy between two c

the Philippines, according to the Solicitor General, one of the attorneys for resp jurisdiction to decide the controversy, because it would raise a constitutional questi the meeting of twelve Senators in whichrespondent was elected acting President o interpretation, application and enforcement of an express and specific provision o Senators comeand attend the session and side with the petitioner's group, it is agre still, because of the deadlock resulting from twelve Senators, each group supporti claims to the position of President of the Senate. Admitting that pressure of pub hasbeen suggested from respondent's side that it may invite revolution. Betwee Supreme Court and revolution, there is only one choice possible, and that is the one is complete enough to offer orderly remedies for any wrong committed within the fra country. Should this Supreme Court refuse to exercise jurisdiction in this case,suc abdication, and such shirking of official responsibility cannot expect acquittal in th issues involved in this case, affecting not only the upper branch of Congress, but al by Republic Act No. 181, is a challenge to our sense of duty which we should not fail

2. The adjournment decreed by petitioner of the Monday session, without the authori null and void.

3. The rump session held by twelve Senators, the respondent and his supporters, a walked out from the session hall, had no constitutional quorum to transact business.

4. The resolution declaring vacant the position of the President of the Senate and c the Senate, has been adopted in contravention of the Constitution for lack of qu designated only as acting President of the Senate, a position not contemplated by th on presidential succession, so much so that his position in acting capacity, accord respondent to Succeedto the position of the President of the Philippines, emphasizes

Notwithstanding the importance of this case, the legal issues involved are very sim prompt conclusion if we could view the controversies with the attitude of a mathema considerations which, from the point of view of laymen, of the press, of public opinio appear of great importance, such as who will wield the power to control the Senate a serious charges filed against him, are completely alien to the questions that th motivations of petitioner and respondent of their respective supporters in the Senate has arisen are their exclusive business and should not be minded for the purposes o

The members of the Senate were and are free to depose petitioner and to elect an and their freedom to make such change is subject only to the dictates of their o people, through the electorate, may render at the polls, and to the judgment of his changes of leadership, the Senate and the Senators are bound to follow the o Constitution and by the rules adopted by the Senate as authorized by the fundamen

may create a legal issue which, once submitted to the proper courts of justice, the ignore the issue upon the pretext of lack of jurisdiction, adopting the indifferent a whether the lashing of the wind may causea live wire to ignite a neighboring house.

When a Senator or a number of Senators come to the Supreme Court, complain adjourned or is adjourning the daily session of the Senate over and above objections first the approval or consent of the majority, we cannot close our eyes to the compla fashion: Otherwise, we would be disregarding ours sworn duty and,with our absten stamp of our approval to the existence and continuation of a unipersonal tyran Congress, a tyranny that may obstruct and defeat the functioning and actuations of t Congress, thus depriving the country of the benefits of legislation.

When a member of the Senate comes to us complaining that he is being deprived of of President of the Senate, to which he has been duly elected because twelve Sen illegally convened and voted to depose him and to elect another Senator in his pl momentous importance which we should not fail to answer without betraying the o constitutes, in effect, an accusation of usurpation of authority by the twelve Senator The situation would demand ready and noother agency of government can offer that whom the complaint has been filed.

The existence of a quorum in a collective body is an indispensable condition for effec collective body is composed of separate and independent individual units, it cannot e of organization and can onlyact in organized form. Every time it has to act, it has to organizing element without which the personality of the body cannot exist or be reco element has been recognize by the members of our Constitutional Convention, and Constitution the provision requiring the existence of quorum for the former National that requirement was also imposed by the National Assembly when, amending the to be replaced by a bicameral Congress. The requirement, both in the original text had been ratified by the sovereign will of the people.

When we required a majority of a legislative chamber to constitute a quorum w democracy is based on the rule of the majority and, to allow a quorum of less than them for example, as in the present controversy, is to allow the anomalous and ana where the Constitution provides for only one. If the twelve Senators of respondent's business, what willpreclude the twelve remaining Senators from constituting them business? This is not impossible, should Senator Sotto decide to attend the session, Confesor returns from abroad and sides with petitioner's group. Then there will be respondent's theory the Supreme Court will have no jurisdiction to decide the conflict or, in its failure, revolution. Such absurd situation and catastrophic result should be a

Lack of jurisdiction is sometimes a refuge behind which weak courts may take shelte

Instead of disputing the jurisdiction of the Supreme Court in this case, everybody mu instead of resorting to any high-handed mean to enforce his right to continue holding has come to us for proper redress by the orderly by the orderly processes of judicia three year ago, he impugned the jurisdiction of the Supreme Court and won his committedagainst the suspended Senators Vera, Diokno and Romero now being mo to this Court to submit his case to our jurisdiction.

The action taken by petitioner in filing his complaint with this Supreme Court is premi Tribunal is the last bulwark of the rights and liberties of the people, the final arb ultimate redoubt of the majesty of the law. That conviction and faith should not be be imperatively nowadays when the majesty of the law, the basic tenets of the Constit fromthe golden rule, which is the law of laws, are being the subject of bold onslaugh taking justice in their own hands or on imposing their will through fraud or violen imperatively and urgently demand a more complete respect and faith in the effecti justice.

For the Supreme Court to renounce its jurisdiction in this case is to disappoint the based on constitutional processes and on legal juridical settlement of all conflicts tha in the hearing of this case that for this Court to refuse cognizance of it may not hav opinion may fail and by experience we know that it had suffered many failure responsibilityof this Supreme Court if it should falter in the performance of its plain du indifference with which a beach vacationist would dismiss a gust of wind.

The principle of separation of powers, so often invoked, to bind the hands of justic absolute. It is an apt rule of the tri-partite division of government as enunciate Montequieu, as the best scheme to put in practice the system of check and bala democracy. To make absolute that principle is to open the doors irretrievable governments within a government and three independent states within a state. Inde that the Constitutional Convention had not inserted among the principles embodied in

Judicial determination of all constitutional or legal controversies is the inherent functi States of America, unlike our own Constitution, is silent a to the power of courts of Congress. Notwithstanding the silence, when the proper case arose, the United leadership of Chief Justice Marshall, had not hesitated in declaring null and void a law provisions. The Supreme Court of the Republic of the Philippines should not fail to evidence of judicial statesmanship.

To bolster the stand against our assumption of jurisdiction in this case the theory ha Philippines having recognized respondent as a duly elected acting President of the S

bind this Court. The theory sprouts from the same ideology under which a former kin the latter should dispose of a pending litigation. Our answer is to paraphrase the g should guide us except what in conscience we believe is becoming of our official fu President of the Philippines may say or feel about it.

As a matter of fact, two pretenders may dispute the office. As in the present case, C presidential election and each group may proclaim a different candidate as the Because of a mistaken ideas to the scope of the principle of separation of powers, if we, as Pontious Pilate, wash our hands and let the people bleed and be crucifiedin th

There is absolutely no merit in invoking the unfortunate decision in the case of Vera would regret more that such a decision had been rendered than petitioner him pusillanimous judicial theory of lack of jurisdiction. The more said decision is forgotte without which the escutcheon of the post-liberation Supreme Court would be spotless

We vote to render judgment granting the petition and ordering respondent to relinqu of the position of the President of the Senate in favor of petitioner who, on the other obstacle or obstruction by illegal adjournments or otherwise, in the holding of the, body should be allowed to continue transacting official business unhampered by a expressionof the will of the majority. BRIONES, M., dissente:

Sin perjuicio de redactar una opinion mas extensa sobre mi voto en ese asun observaciones:

(1) Esta Corte Suprema tiene jurisdiccion sobre el asunto. Reafirmo la posicio contra Avelino (77 Phil., 192) y Mabanag contra Lopez Vito (78 Phil., 1). La cuestion de caracter puramente politico en el sentido de que esta Corte deba inhibirse d justiciable. Se plantea la cuestion de si el grupo de senadores que eligio al recurrido facultad para hacerlo. Se alega y se sostiene que no existia dicha facultad, puesto q un quorum presente de conformidad con los terminos de la Constitucion y de los r justiciable y puede y debe ser enjuiciada, determinada y resuelta por esta Corte nosotros en demanda de remedio. Esta Corte no puede lavarse las manos en un continuar con la politica de esconde-cabeza-en la arena-del-desierto estilo aveztruz. importante, muy importante. Tiene repercusiones directas y vitalisimas en la vida, lib negocio supremo de legislar lo que esta en debate. Es, por tanto, una de las esen controversia. La escaramuza politica es lo de menos; el meollo juridico-constituciona Es tanto mas urgente que esta Corte asuma jurisdiccion sobre el caso cuanto que

dos grupos politicos en guerra ha cobrado las proporciones de una tremenda crisis la estabilidad de nuestras instituciones politicas, para el orden publico y para la integ

Tenemos un precedente tipico en la jurisprudencia del Estado de New Jersey, Es Werts vs. Rogers, del ao 1894, Atlantic Reporter, Vol. 28, p. 728, N. J. La analog presidencia del Senado dos Senadores, cada cual pretendiendo ser al legitimo. reclamando ostentar la genuina representacion popular. Un grupo se llamo "Adrian por los nombres de los presidentes en disputa. Se arguyo igualmente que la Corte jurisdiccion sobre el caso por tratarse de una cuestion eminentemente politica, por t conocio del caso y, por boca de su Presidente el eminente jurisconsulto M pronunciamiento:

. . . . That this court has the legal right to entertain jurisdiction in this case, displayed are further of opinion that it is scarcely possible to conceive of any crisis in public af present one call for the intervention of such judicial authority. (supra, p. 758.)

Ademas de la justiciabilidad de la materia en controversia, una de las principales ra New Jersey para asumir jurisdiccion sobre el caso fue la extrema necesidad de maquinaria legislativa, afectaba a la estabilidad del gobierno y ponia en grave pe existe la misma razon de extrema necesidad en el presunto caso? que duda cabe en nuestro Senado esta afectando seriamente a los intereses publicos? que duda esta rota, con grave preocupacion de todo el mundo y con grave dao de la tranquili

(2) El levantamiento de la sesion ordenado por el presidente Avelino fue ilegal y arb obro ilegal y arbitrariamente al ordenar el levantamiento de la sesion frente a la op senadores adversos a el. En vista de esta oposicion, el deber de la Mesa era some de la sesion presentada por el Senador Angeles David. Avelino no tenia el derecho sesion. Solamente cuando no se formula ninguna objection es cuando rutinaria aprobada una mocion de levantamiento de la sesion. Si la facultad de levantar la voluntad de la mayoria, seria un arma sumamente peligrosa en manos de un preside

La pretension de que el Senador Avelino ordeno el levantamiento de la sesion en us que el mismo creia que habia un peligro inminente de desorden y tumulto en insostenible. Las circunstancias del caso no justifican semejante pretension, a tenor debia haber hecho el Senador Avelino era tratar de apaciguar al publico y preven para hacerlo. No lo hizo. En cambio, dejo la silla presidencial juntamente con los se desercion y los senadores del otro grupo tenian perfecto derecho a proceder como continuar celebrando la sesion. Esta sesion venia a ser una tacita reconduccion habia sido declarada abierta por el presidente Avelino con un quorum presente de 22 (3) Sin embargo, la sesion prolongada se convirtio en ilegal por falta de quorum.

partes que al reanudarse la sesion estaban presentes los 12 miembros del grup senadores del grupo llamado "Senado de Avelino". En esta coyuntura el Senador M cuestion del quorum, de cuyas resultas se ordeno por el Senador Arranz, que enton Tambien es cosa establecida en autos y admitida por ambas partes que al comen senadores del grupo de Avelino salieron del salon y solamente respondieron al roll c

Resulta evidente de estos hechos que no habia quorum, por cuanto que com debidamente elegidos y cualificados, el quorum para celebrar sesion valida debe se federal como la de los estados de la Union americana esta repleta de decisiones doctrina de que la base para determinar el quorum legislativo es el numero to cualificados de cada camara.1 En el presente caso, como se ha dicho, ese numero podia seguir celebrando validamente sesion, en vista de la falta de quorum. De acue el grupo Cuenco tenia ante si dos caminos para actuar: (a) suspender la sesion quorum; (b) o compeler la asistencia de suficientes senadores del otro grupo para efecto ordenar inclusive el arresto de los huelguistas. (Constitucion de Filipinas, Senado, Cap. VI, arts. 23 y 24.3) Asi que todos los procedimientos efectuados por el e ilegales.

Se ha insinuado que el cambio de fraseologia en el precepto constitucional sobre qu texto original de 1935 se decia lo siguiente: "A majority of all the Members shall c mientras que en el texto enmendado de 1940 se dice: "A majority of each House sha De esto se quiere deducir la consecuencia de que esta reforma habra sido por alg una base menor de la totalidad de miembros para determinar la existencia de u insostenible, por no llamarlo futil. Los autores de la enmienda no han hecho mas q Constitucion federal americana; y ya hemos visto que esta se ha interpretado en e determinar el quorum, la totalidad de los miembros electos y cualificados de cada c en vez de denotar cambio en el significado, refuerza el sentido tradicional de que la totalidad de los miembros electos y cualificados de cada camara. Aparte de que es misma cosa puede expresarse en terminos diferentes.

Tambien se ha insinuado, con bastante ingenio, que en el caso que nos ocupa, la excluyendo al Senador Confesor que se halla en America, pero incluyendo al S presente en la sesion de autos por estar gravemente enfermo, hallabase, sin emb momento de ser llamado por el Senado. El fundamento de esta opinion es que para contado un miembro que esta fuera de la accion coercitiva de la camara. La proposic tiene ningun precedente en la jurisprudencia, sino que es convencional, arbitraria, permanente, a ciertas eventualidades y contingencias. Hay que tener en cuenta pertinente no establecen ninguna salvedad. Donde la ley no distingue, no debemos d

(4) Cual es el remedio. No cabe duda de que una mayoria de Senadores tiene de

que les plazca, siempre que ello se sujete a las normas prescritas por la Constit presente caso el grupo Cuenco que al parecer forma la mayoria, por lo menos instrumentos constitucionales y legales para efectuar una reorganizacion. Puede con de un numero suficiente de Senadores para formar quorum, ordenando el arresto Esto en el supuesto de que el Senador Avelino y su grupo sigan boicoteando existencia de un quorum. Pero si el grupo Avelino acude voluntariamente al S buenamente restaurar la normalidad constitucional, procediendo a efectuar la reorga

Hasta que esto se haga, el Senador Avelino es tecnicamente presidente del Sen grave arbitrariedad ordenando el levantamiento de la sesion sin derecho y facultad p otra arbitrariedad; la de destituirle por medios anticonstitucionales, ilegales y antire Avelino y de la de sus adversarios no nos interesan para nada ni caen dentro de nu son sus repercusiones juridicas.

Es de suma importancia, sobre todo en estos momentos incipientes de la r implacablemente la integridad de la Constitucion y de los procedimientos que presc el ciego desbordamiento de las pasiones politicas y personales, con todas sus fune impedir la formacion de un clima politico, social o moral que facilite las cuarteladas, y de estado (coup d'main, coup d'etat) eso que caracteriza la historia azarosa de Brumario solamente se puede prevenir imponiendo con todo rigor, sin blandas trans y de las leyes y reglamentos que la implementan. Voto, por tanto, en favor de la concesion del recurso interpuesto. TUASON, J., dissenting:

I agree with Mr. Justice Briones' dissenting opinion, that the twelve senators who el the Senate did not constitute a quorum and, consequently, that his election was illega

It appears tome that the basis for computing a quorum of the Senate is thenumber o qualified and who have not ceased to be senators by death or legal disqualification. computation? No satisfactory, reasonable alternative has been or can be offered.

Absence abroad cannot be a disqualification unless by such absence, under the Con office, emoluments, and other prerogatives, temporarily or permanently. There is no presence at the session be the criterion, then serious illness or being in a remote means of communication should operate to eliminate the sick or absent membe determining the presence of a majority.

The distinction made between absentees form legislative sessions who are in the

foreign country is, to my arbitrary and unreasonable. From both the theoretical and sometimes found necessary to fulfill their missions. If we test the interpretation b dangers become more apparent. The interpretation would allow any number of leg business so long as it is a majority of the legislators present in the country. Nothing i the minds of the authors of the Constitution than to permit, under circumstances qualified representatives of the people to approve measures that might vitally affe property. The necessity of arresting absent members to complete a quorum is too in the attendance of an absolute majority, to make unamenability to arrest a factor for legislature's process. The Congress is eminently a law-making body and is little con The power to order arrest is an emergency measure and is rarely resorted to. Viewed arrest could always afford a satisfactory remedy even in the cases of members who especially true in the United States of America, after whose form of governmen possession extend to the other side of the globe.

This case is easily distinguishable from Vera vs. Avelino, (77 Phil., 192), and Mabana

In those cases the petitions were directed against an action of a recognized Senate Here the process sought is to be issued against an appointee of a senate that, it i business because, among other reasons alleged, there was not quorum. The Court coordinate branch of the government so much as to test the legality of the appointme Section 1, Rule 68, of the Rules of Court provides:

An action for usurpation of office of franchise may be brought in the name of the Rep

(a) A person who usurps, intrudes into, or unlawfully holds or exercise a public corporation created by authority of law; xxx xxx xxx

This provision by its terms extends to every office. Its scope does not exclude officer government. Although this Court has no control over either branch of the Congr whether or not one who pretends to be its officer is holding his office according to law a bar to jurisdiction can only be raised by the supreme power, by the legislature, a Border, 48 U.S. 7 How. 1, 12 Law ed., 581.) If there were two lesser officers of the S and contesting each other's right to the office, it would not be the Senate by the Cour controversy. There is more reason for the Court to intervene when the office of the interest of the public are being greatly imperiled by the conflicting claims, and imperatively demanded, in the interest of good government and public order.

Fundamentally this case is analogous to Attorney General, ex rel. Werts vs. Rogers

which I am indebted for much of the reasoning adduced in this dissent on the questio March 14, 1949 RESOLUTION

Considering the motion for reconsideration filed by petitioner in case G.R. L-2821, court, without prejudice towriting later an extended opinion, has resolved, by a major case in the light of subsequent events whichjustify its intervention; and, partly for the Court and partly upon the grounds stated by Mr. JusticeFeria, Mr. Justice Perfecto opinions, to declare that there was a quorum at the session where respondent Mar President.

The Chief agrees with the result of the majority's pronouncement of the quorum circumstances of the case,the constitutional requirement in that regard has becom evidence that any new session with a quorum wouldresult in the respondent's el Cuenco group, taking cue from the dissenting opinions, has been trying to satis processes against senators of the Avelino group, but to no avail, because of the latte constitutional processes. For this reason, he believethat the group has done en Constitutionand that the majority's ruling is in conformity with substantial justice and w

The judgment of the Court is, therefore, that respondent Mariano J. Cuencohas bee the petition is petition is dismissed, with costs against petitioner.

Mr. Justice Paras concurs in the result, Mr. Justice Bengzon dissents on the question of quorum.

Mr. Justice Tuason concurs on the question of jurisdiction but dissents on that on tha

Mr. Justice Montemayor dissent s of the question of jurisdiction and reserves his vote Mr. Justice Reyes reserves the right to express the reasons for his vote. FERIA, J., concurring:

In the case of Vera et al. vs. Avelino et al., (77 Phil., 192), the principal question ra jurisdiction to set aside the Pendatun resolution ordering that petitioners Vera, Diok seated as members of the Senate, and compel the respondents had no power contraryto the provisions of Sec. 11, Article VI, of the Constitution, which createdthe for the House of Representative, and provided that said Tribunal shall be judge of all

qualifications of their respective members. Respondent Avelino et al., who were repr the Solicitor General, impugned the jurisdiction of this Court to take this Court to ta that the question therein involved was a political question, and petitioners Veraet al W. Diokno, who is now oneof the attorneys for respondents, who now contends that t the present case, then maintained that this Court had jurisdiction.

And in the case of Mabanag et al. vs. Jose Lopez Vito et al., 78 Phil., 1, the quest jurisdiction of this Court to take cognizance of the case and prohibit the respon Resolution of both Houses proposing an amendment to the Philippines to be append rights to the citizens of the United states of American in the Philippines, on the grou not passedby the vote of three-fourths of the members of the Senate and House required by Sec. 1, Art. XV, of the Constitution, since if the Members of Congress w counted, the affirmative votes in favor of the proposed amendment would have been in either branch of Congress. Petitioners Mabanag et al. contended that the Co maintained the contrary on the ground that the question involved was apolitical on Legislature.

The theory of Separation of Powers as evolved by the Courts of last resortfrom the American, after which our owns is patterned, has given rise to the distinction betwee province of the judiciary, and politicalquestions which are not within the jurisdiction o the Constitution, by the People in their sovereign capacity or in regard to which full to the legislative or executive branch of the government, except to the extent that been conferred upon the court byexpress or statutory provision. Although it is contradistinguished from a justiceable one, it has been generally held that the first i power to participate, directly or indirectly, in the establishment or managementof justiceable questions are those which affect civil, personal or property rights accord nation.

Under such theory of Separation of Power, the judicial Supremacy is the power of jud and controversies that present justiceable issues, which fall within the jurisdiction or the issue is a political one which comeswithin the exclusive sphere of the le Government to decide, the judicial department or Supreme Court has no powerto Legislative or Chief Executiveis against the Constitution. What determines the jurisdic not the law or constitutional provisionwhich may be applied. Divorced from the reme the matter of constitutionality or unconstitutionality of alegislative or executive act, w coercive force.

Relying on the ruling laid down in Severino vs. Governor General, 16 Phil.,336 Alejandrino vs. Quezon, 46 Phil., 83, the Supreme Court upheld the contention question involved was a political question and therefore this Court had no jurisdictio

that this Courthad jurisdiction, and dissented from the decision of the majority.

When the present case was first submitted to us, I concurred with the majority, in cases, which constitutes a precedent which is applicable a fortiori to the present ca virtue of the doctrine or maxim of stare decisis, and in order to escape the cr Commonwealth when he said that "The Supreme Court has changed its color i.e., its according to the political proclivities of the men who composed it. . . . Their action they had formed before their accession to the bench and from the sympathy they c behalf they had contended." (The ANNALS of the American Academyof Political and

Now that the petitioner, who obtained a ruling favorable to his contention in the Verareconsideration that this Court assume jurisdiction and decide whether or not there February 21, 1949, and is willing to abide by the decision of this Court (notwithsta several of the Justices, who have held before that this Supreme Courthad no juris Court, I gladly change my vote and concur with the majority in that this Court has accordance with my stand inthe above mentioned cases, so as to establish in thi Supreme Court as the final arbiter, to see that no one branch or agency of the govern in justiceable but political questions as well.

But I maintain my opinion and vote in the resolution sought to be reconsidered,that Senate of Senate of February 21,1949, for the following reasons:

Art. 3 (4) Title VI of the Constitution of 1935 provided that "the majority of all the mem quorum to do business" and the fact that said provision was amended in the Const each House shall constitute a quorum to do business," shows the intention of th majority, not on the number fixed or provided for the Constitution,but on actual m limited to actual members who are not incapacitated to discharge their duties by rea the jurisdiction of the house or forother causes which make attendance of the me coercive process which each house is empowered to issue to compel itsmembers to quorum. That the amendment was intentional or made for some purpose, and not a m the words "of all the members" as unnecessary, is evidenced by the fact that Sec which required "concurrence of two-thirds of the members of the National Assembly 10 (3) Article VI of the present Constitutional, so as to require "the concurrence House". Therefore, as Senator Confesor was in the United States and absent from members of the SEnate at its session of February 21, 1949, were twenty-three (23) a

This conclusion is in consonance with the legislative and judicial precedent. In the amendment of the Constitution of the Philippines to be appended to the Constitution the Philippines out of which the case of Mabanag vs. Lopez, supra arose, both Ho fourths of all the members of the Senate and the House of Representative votingse

the Constitution, the three-fourths of all the members was based, not on the numbe but on the actual members who have qualifiedor were not disqualified. And in the c provision of Sec. 1, subsection 2, of Act No. 3104, which requiredunanimity of vote excepted from the court those members of the Court who were legally disqualifie absence of the Chief Justice Avancea, authorized by resolution of the Court, was a necessary in the determination of the unanimity of the decision imposing death penal PABLO, J., concurrente:

Aungue los Sres. Magistrados Paras, Feria, Bengzon y yo, sosteniamos que este Tr porque era de naturaleza eminentemente politico, emitimos, sin embargo, nues constituian quorum legal para tomar resoluciones. Desde luego, la opinion no surtio continua. Los recientes acontecimientos pueden trascender a peores, con sus ine pais. Cuando las pasiones politicas no van por el cauce de la prudencia pueden de Es un sano estadismo judicial evirtarlo y, si es necesario, impedirlo.

El recurrente pide que se reconsideresa nuestra dividida opinion. alegando que las producido sangrientes luchas fratricidas. Si no tuviera en cuenta mas que la solitud de reconsideracion debe ser denegada en cuanto a mi voto sobre la falta de jurisdi simple solicitud de una parte, ni por la anuencia de amas, sino por la ley o por la Con

La apelacion del recurrente de que este Tribunal asuma jurisdiccion para evitar d Como magistrado, no deben importante las consecuencias; pero como ciudadano, m grupos en el Senado sin fin practico. Al pueblo interesa que la Legislatura reanu transigir, pues, para que haya seis votos que sostengan que este Tribunal tiene jur fracasara todo esfuerzo de reajustre de nuestras opiniones para dar fin a la crisis en

El Sr. Presidente del Tribunal y los Sres. Magistrados Perfecto y briones opinian hoy sesion despues de la marcha del Senador Avelino y compaeros. Con ellos, ya resoluciones votadas por los doce senadores son legales y validas. pero para indispensable que el tribunal la declare con jurisdiccion. Contribuyo mi grando de are esta minando el interes publico: voto hoy por que el Tribunal asuma jurisdiccion pa los doce senadores formaban quorum. De be denegarse la mocion de reconsideracion. PERFECTO, J., concurring:

The problem of democracy must be faced not in the abstract but as practical questio

human life. They cannot be considered as scientific propositions or hypothesis inde unpredictable flights of the spirit which seen to elude the known laws of the externa reliable guide in judging human conduct. Birth and death rates and incidence of illn and determination of human behavior, and statistics are one of the means by whic contribution in finding the courses leading to the individual well-being and collective h

The way this case has been disposed of by the Supreme Court, upon the evidence c provenly far from being conducive to democratic eudaemonia. We intended to sett respondent, but actually we left hanging in the air the important and, indeed, vital qu enlightenment and reasonable and just in a quandary.

We can take judicial notice that legislative work has been at a standstill; the normal been hampered by the non-attendance to sessions of about one-half of the memb openly defied, and remained unexecuted like mere scraps of paper, notwithstanding prominent persons with well-known addresses and residences and have been photographers. Farce and mockery have been interspersed with actions and mo bloodshed.

It is highly complimentary to our Republic and to our people that, notwithstanding irreconcilable attitude of warring factions, enough self-restraint has been shown to av denying that the situation, as abstaining in the upper chamber of congress, is highly the Representatives. It has already involved in the House of the Representatives. It Philippines. The situation has created a veritable national crisis, and it is apparent quarter other then this Supreme Court, upon which the quarter other than this Sup people for an effective settlement are pinned.

The Avelino group, composed of eleven senators almost one-half of the entire bod should take jurisdiction of the matter and decide the merits of the case one way or an the decision regardless of whether they believe it to be right or mistaken. Among the there are several Senators who in not remote past (see Vera vs. Avelino, 77 Phil., 19 have shown their conviction that in cases analogous to the present the Supreme Co we include the former attitude of the senator who is at present abroad, we will find ou who at one time or another recognized the jurisdiction of the Supreme Court controversies as the one now challenging our judicial statesmanship, our patriotism Court as the last bulwark of the Constitution.

In the House of Representatives unmistakable statements have been made supporti or of three-fourths (3/4) of the entire Upper Chamber, in support of the jurisdiction o that we should decide this case on the merits.

Judicial "hands-off" policy is, in effect, a showing of official inferiority complex. Conse

field, it is premised on notions of reality fundamentally wrong. It is an upshot of disto as to become unable to have a healthy appraisal of reality in its true form.

It is futile to invoke precedents in support of such an abnormal judicial abdication. T 46 Phil., 83, is absolutely devoid of any authority. It was rendered by a colonial Sup of the masters. That explains its glaring inconsistencies.

Also frivolous is to invoke the decision in Vera vs. Avelino, (77 Phil., 192), and M patterned after the colonial philosophy pervading the decision in Alejandrino vs. Qu must not lag behind the political emancipation of our Republic. The judiciary ought to role as spokesman of the collective conscience, of the conscience of humanity.

For the Supreme Court to refuse to assume jurisdiction in the case is toviolate the C power vested in it is to transgress the fundamental law. This case raises vital constitu decide if this Court should refuse to decide them. It would be the saddest co statesmanship of our Constitutional Convention to have drafted a document leaving Philippine democracy ifit failed to entrusted to the Supreme Court the authority to dec

Our refusal to exercise jurisdiction in this case is as unjustifiable as the refusal of s the Senate and toperform their duties. A senatorial walkout defeats the legislative po Judicial walkouts are even more harmful than a laborers' strike or a legislative im laborers temporarily stop to work. Society may not be disrupted by delay in the legi with dissolution in the absence of an effective administration of justice. Anarchy and c

There is nothing so subversive as official abdication or walkout by the highest organs fail to perform their functions and duties, what is the use for minor officials and emp question of quorum should not be leftunanswered.

Respondent's theory that twelve (12) senators constitute the majority require unacceptable. The verbal changes made in the constitutional amendment, upon National Assembly, have not affected the substance of the constitutional concept of contexts. The words "all the members" used in the original, for the determination of t been eliminated in the amendment, as regards the house of Congress, because th this opinion, as Member of the Second National Assembly and in his capacity as Cha was the one who proposed the elimination of said surplusage, because "majority of e the members thereof, without excluding anyone, that is, of all the members.

The word majority is a mathematical word. It has, as such, a precise and exactmath than one-half (). It can neverbe identified with one-half () or less than one-half ( the antithesis between more and less is etched in the background of reality as antithesis of all opposites, and in the same way that the affirmative cannot be con

nothingness, existence withnon-existence, truth with falsehood.

The Senate is composed of twelve four (24) senators. The majority of said senators (12) do not constitute the majority in a group composed of twelve four (24) units. T have the mathematical genius of Pythagoras, Euclid, Newton and Pascal to see immediately perceive it.

No amount of mental gymnastic or juristic logodaedaly will convince anyone that majority part of the two numbers combined. The five (5) fingers of one hand canno fingers of the two hands. Majority is incompatiblewith equality. It implies the idea of s

Majority is a derivative of major which, in its turn, is a derivative of the Latin "mag greater of two numbers that are regarded as part of a total: the number greater than the greater part or portion. It presupposes the existence of a total and, in the presen senators composing the Senate.

The above pronouncements notwithstanding, we are now inclined to conclude tha merely as Acting of the Senate, asan emergency measure to fill the vacuum create presiding officer by his walked in the session of February 21, 1949, the presence quorum. The Constitution provides:

(2) A majority of each House shall constitute a quorum to do business, but a smaller may compel the attendance of absent members in such manner and under such pe 10, Article VI.)

The "smaller number" referred to in the above provision has to act collectively and c function specially vested in it by the Constitution unless presided by one among their said "smaller number" has to take measure to "compel the attendance of absent me as such House may provide," so as to avoid disruption in the functions of the res number" maybe twelve or even less than twelve senators to constitute a quorum president, who will have to act until normalcy is restored.

As events have developed after the decision in this case has been rendered on Ma attitude has acquired clearerand more definite form, and that picture brings us to moot one.

At the hearing of this case for the reception of evidence before Mr. Justice Be respondent, on cross-examination bySenator Vicente J. Francisco, counsel for petiti opportunity to renounce the position of Acting President of the Senate, and that if S

attend the sessions. He would only make of record his protest, and never resort t presiding over said sessions.

The last statement as to allowing petitioner to preside over the sessions was ma petitioner, although he refused to attend the hearing of this case, so much so tha affidavit which, under the rules of procedure, is inadmissible as incompetent and is a fail to learn about respondent's testimony, because it was given publicity, it is re counsel, Senator Francisco, would certainly not have failed to inform him about it.

Notwithstanding respondent's testimony, petitioner failed to take advantage of it and of the Senate since he and his group of senators have walked out from the historic M

If petitioner is sincere in his desire of presiding over the sessions of the Senate, for w Supreme Court, why has he failed to take advantage of the commitment made und 1949? Why has he, since then, been not only failing but refusing to attend the sess petitioner and his group of Senators have given occasion, in fact, compelled the warrants of arrest to remedy the lack of quorum that has been hampering the sessio sergeant-at-arms, his subordinates and the peace officers helping him, have to be hu in a, so far, fruitless if not farcical endeavor to compel them to attend the sessions?

The events that have been unfolding before our eyes, played up everyday in scre which, by their very nature, we cannot fail to take judicial notice, considered, w happenings in the Friday and Monday sessions, February 18 and 21, 1949, have powers and prestige which command the position of President of the Senate, he act the sessions of the Senate, the most characteristic and important function of Preside

His refusal to attend the sessions, notwithstanding respondent's commitment to allow logically be interpreted as an abandonment which entails forfeiture of office. (Santi Guzman, 49 Phil., 371; 46 Corpus Juris p. 980-981; Wilkinson vs. City of Birmingham p. 27).

What are petitioner's reasons for refusing to attend the Senate sessions? What ar want a square decision on the merits of this case, for which reason the motion for re believe that the Supreme majority vote, to exercise jurisdiction in this case, and the in Members of the majority has only increased public bewilderment, stronger reasons f sessions of the Senate.

If this Court had decided this case as the four dissenters would have it, there cann would have been settled many days ago and, with it, the present national crisis h machinery. .

The gravity of the situation cannot be gainsaid. The showings of open defiance to People are asking and wondering if senators are placed above the law that they despite the authority of the officers entrusted with the execution. Threats of violence public interests that demand remedial legislation. The present state of confusion, of a ended if, for the reasons we have stated in our dissenting opinion, the Suprem reposition.

Once petitioner had been recognized to continue to be the President of the Sena Senate sessions to preside over them. Then the sessions with senators of the Aveli with the constitutional quorum. The twelve senators of the Cuenco group would have to reenact all the disputed actuations of the rump session of February 21, 1949, a succeeded in ousting petitioner and electing respondent to the position of President o

Everything then would have followed the normal course. With the presence of a cle and his followers would have no ground for any complaint, and respondent could without any hitch.

Of course, petitioner and the senators of his group might have resorted again to session of February 21, 1949, but it is not probable that they would have taken th almost unanimously declared that petitioner's action in adjourning the session of Fe At any rate, the Senators of the Cuenco group would have been by then well pr immediate execution before the striking senators could leave the building housing the

The abnormal situation in the Senate must be stopped at once. Legislation must g filed against petitioner, respondent and other senators demand imperatively investig to punish the guilty ones. Public interest cannot demand less.

Under such circumstances, petitioner has lost all title to claim the position in c practically close any door for him to again seek the position by attending the session that would support him in his bid. The motion for reconsideration should be denied. Footnotes
1

On this matter, the vote is 6 to 4 in favor of lack of jurisdiction. On this matter, the vote is 4 to 4.

Quoted with approval in U.S. vs. Ballin, Joseph & Co., 36 Law ed., 321, 325.

BRIONES, M., disidente:

1

". . . . Article I, Section 5, of the Constitution of the United States provides:

"Each House shall be the judge of the elections. . . . and a majority of each shall cons "Interpreting this provision, the Supreme Court of that country held in U.S. vs. Ballin,

"The Constitution provides that 'a majority of each (house) shall constitute a quorum majority are present, the House is in a position to do business. Its capacity to transa the mere presence of a majority, and does not depend upon the disposition or assen of the majority present. All that the Constitution requires is the presence of a majori power of the House arises." "The same decision quoted with approval from Dillon, Mun. Corp., the following rule:

". . . If all the members of the select body or committee, or if all tha agents are assem the minority refuse or neglect to meet with the others, a majority of those present m majority of the whole number. In other words, in such case, a major part of the whol a majority of the quorum may act. If the major part withdraw so as to leave no quo general, considered to cease."

"Quorum as used in U.S.C.A. Const. Art. 4, Sec. 8, providing that a majority of ea business, is, of the purposes of the Assembly, not less than the majority of the w composed.

Vacancies from death, resignation or failure to elect cannot be deducted in ascertai Fla. 653)
2

A majority of each house shall constitute a quorum to do business, but a smaller may compel the attendance of absent Members in such manner and under such pen
3

CHAPTER VI The house Sec. 23. A majority of the Senators shall constitute a

"SEC. 24. Whenever the question of quorum is raised by any Senator in any sessio call and announce forthwith the result.

"This shall be done without debate. If after the roll call it appears that there is no q may other the Sergeant-at-arms to summon the attendance of absent Senators, and

in which case the order that that effect shall not be subject to debate.

"SEC. 25. Only for a just cause may a Senator be excused from atttending the sessio
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