GANZON V. CA (1991) | SARMIENTO, J.

The petitioners take common issue on the power of the President (acting through the
Secretary of Local Government), to suspend and/or remove local officials.
The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a
member of the Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.
The petitions of Mayor Ganzon originated from a series of administrative complaints,
ten in number, filed against him by various city officials sometime in 1988, on various
charges, among them, abuse of authority, oppression, grave misconduct, disgraceful
and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary
detention. 1 The personalities involved are Joceleehn Cabaluna, a clerk at the city
health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant City
Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German
Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang
Panglunsod; and Pancho Erbite, a barangay tanod. The complaints against the Mayor
are set forth in the opinion of the respondent Court of Appeals. 2 We quote:
xxx xxx xxx
In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City
Health, Office of Iloilo City charged that due to political reasons, having supported the
rival candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an excuse the
exigency of the service and the interest of the public, pulled her out from rightful
office where her qualifications are best suited and assigned her to a work that should
be the function of a non-career service employee. To make matters worse, a utility
worker in the office of the Public Services, whose duties are alien to the complainant's
duties and functions, has been detailed to take her place. The petitioner's act are pure
harassments aimed at luring her away from her permanent position or force her to
resign.
In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to
perform task not befitting her position as Assistant City Health Officer of Iloilo City;
that her office was padlocked without any explanation or justification; that her salary
was withheld without cause since April 1, 1988; that when she filed her vacation
leave, she was given the run-around treatment in the approval of her leave in
connivance with Dr. Rodolfo Villegas and that she was the object of a well-engineered
trumped-up charge in an administrative complaint filed by Dr. Rodolfo Villegas (Annex
B).
On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City and
complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo
Pefia Pedondo are members of the Sangguniang Panglunsod of the City of Iloilo. Their
complaint arose out from the case where Councilor Larry Ong, whose key to his office
was unceremoniously and without previous notice, taken by petitioner. Without an
office, Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the
other complainants sympathized with him and decided to do the same. However, the
petitioner, together with its fully-armed security men, forcefully drove them away
from Plaza Libertad. Councilor Ong denounced the petitioner's actuations the following
day in the radio station and decided to hold office at the Freedom Grandstand at Iloilo
City and there were so many people who gathered to witness the incident. However,
before the group could reach the area, the petitioner, together with his security men,
led the firemen using a firetruck in dozing water to the people and the bystanders.
Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed
by former mayor Rosa O. Caram. On March 13, 1988, without the benefit of charges
filed against him and no warrant of arrest was issued, Erbite was arrested and

detained at the City Jail of Iloilo City upon orders of petitioner. In jail, he was
allegedly mauled by other detainees thereby causing injuries He was released only the
following day. 3
The Mayor thereafter answered 4 and the cases were shortly set for hearing. The
opinion of the Court of Appeals also set forth the succeeding events:
xxx xxx xxx
The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June
20-21, 1988 at the Regional Office of the Department of Local Government in Iloilo
City. Notices, through telegrams, were sent to the parties (Annex L) and the parties
received them, including the petitioner. The petitioner asked for a postponement
before the scheduled date of hearing and was represented by counsel, Atty. Samuel
Castro. The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had
to come all the way from Manila for the two-day hearings but was actually held only
on June 20,1988 in view of the inability and unpreparedness of petitioner's counsel.
The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City.
Again, the petitioner attempted to delay the proceedings and moved for a
postponement under the excuse that he had just hired his counsel. Nonetheless, the
hearing officers denied the motion to postpone, in view of the fact that the parties
were notified by telegrams of the scheduled hearings (Annex M).
In the said hearings, petitioner's counsel cross-examined the complainants and their
witnesses.
Finding probable grounds and reasons, the respondent issued a preventive suspension
order on August 11, 1988 to last until October 11,1988 for a period of sixty (60) days.
Then the next investigation was set on September 21, 1988 and the petitioner again
asked for a postponement to September 26,1988. On September 26, 1988, the
complainants and petitioner were present, together with their respective counsel. The
petitioner sought for a postponement which was denied. In these hearings which
were held in Mala the petitioner testified in Adm. Case No. C-10298 and 10299.
The investigation was continued regarding the Malabor case and the complainants
testified including their witnesses.
On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of
the October 24, 1988 hearing to November 7 to 11, 1988 which was granted.
However, the motion for change of venue as denied due to lack of funds. At the
hearing on November 7, 1988, the parties and counsel were present. Petitioner
reiterated his motion to change venue and moved for postponement anew. The
counsel discussed a proposal to take the deposition of witnesses in Iloilo City so the
hearing was indefinitely postponed. However, the parties failed to come to terms and
after the parties were notified of the hearing, the investigation was set to December
13 to 15, 1988.
The petitioner sought for another postponement on the ground that his witnesses
were sick or cannot attend the investigation due to lack of transportation. The motion
was denied and the petitioner was given up to December 14, 1988 to present his
evidence.
On December 14,1988, petitioner's counsel insisted on his motion for postponement
and the hearing officers gave petitioner up to December 15, 1988 to present his
evidence. On December 15, 1988, the petitioner failed to present evidence and the
cases were considered submitted for resolution.

In the meantime, a prima facie evidence was found to exist in the arbitrary detention
case filed by Pancho Erbite so the respondent ordered the petitioner's second
preventive suspension dated October 11, 1988 for another sixty (60) days. The
petitioner was able to obtain a restraining order and a writ of preliminary injunction in
the Regional Trial Court, Branch 33 of Iloilo City. The second preventive suspension
was not enforced. 5
Amidst the two successive suspensions, Mayor Ganzon instituted an action for
prohibition against the respondent Secretary of Local Government (now, Interior) in
the Regional Trial Court, Iloilo City, where he succeeded in obtaining a writ of
preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for
prohibition, in the respondent Court of Appeals.
Meanwhile, on May 3, 1990, the respondent Secretary issued another order,
preventively suspending Mayor Ganzon for another sixty days, the third time in twenty
months, and designating meantime Vice-Mayor Mansueto Malabor as acting mayor.
Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of
Appeals, a petition for prohibition, 6 (Malabor it is to be noted, is one of the
complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)
On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R.
SP No. 16417. On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R.
SP No. 20736. In a Resolution dated January 24, 1990, it issued a Resolution
certifying the petition of Mary Ann Artieda, who had been similary charged by the
respondent Secretary, to this Court.
On June 26,1990, we issued a Temporary Restraining Order, barring the respondent
Secretary from implementing the suspension orders, and restraining the enforcement
of the Court of Appeals' two decisions.
In our Resolution of November 29, 1990, we consolidated all three cases. In our
Resolutions of January 15, 1991, we gave due course thereto.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local
Government in hearing the ten cases against him, had denied him due process of law
and that the respondent Secretary had been "biased, prejudicial and hostile" towards
him 7 arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng
Demokratikong Pilipino party 8 and the running political rivalry they maintained in the
last congressional and local elections; 9 and his alleged refusal to operate a lottery in
Iloilo City. 10 He also alleges that he requested the Secretary to lift his suspension
since it had come ninety days prior to an election (the barangay elections of
November 14, 1988), 11 notwithstanding which, the latter proceeded with the hearing
and meted out two more suspension orders of the aforementioned cases. 12 He
likewise contends that he sought to bring the cases to Iloilo City (they were held in
Manila) in order to reduce the costs of proceeding, but the Secretary rejected his
request. 13 He states that he asked for postponement on "valid and justifiable" 14
grounds, among them, that he was suffering from a heart ailment which required
confinement; that his "vital" 15 witness was also hospitalized 16 but that the latter
unduly denied his request. 17
Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary
of Local Government is devoid, in any event, of any authority to suspend and remove
local officials, an argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R.
No. 93746).
As to Mayor Ganzon's charges of denial of due process, the records do not show very
clearly in what manner the Mayor might have been deprived of his rights by the

respondent Secretary. His claims that he and Secretary Luis-Santos were (are)
political rivals and that his "persecution" was politically motivated are pure speculation
and although the latter does not appear to have denied these contentions (as he,
Mayor Ganzon, claims), we can not take his word for it the way we would have under
less political circumstances, considering furthermore that "political feud" has often
been a good excuse in contesting complaints.
The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos
had attempted to seduce him to join the administration party and to operate a lottery
in Iloilo City. Again, although the Secretary failed to rebut his allegations, we can not
accept them, at face value, much more, as judicial admissions as he would have us
accept them 18 for the same reasons above-stated and furthermore, because his say
so's were never corroborated by independent testimonies. As a responsible public
official, Secretary Santos, in pursuing an official function, is presumed to be
performing his duties regularly and in the absence of contrary evidence, no ill motive
can be ascribed to him.
As to Mayor Ganzon's contention that he had requested the respondent Secretary to
defer the hearing on account of the ninety-day ban prescribed by Section 62 of Batas
Blg. 337, the Court finds the question to be moot and academic since we have in fact
restrained the Secretary from further hearing the complaints against the petitioners.
19
As to his request, finally, for postponements, the Court is afraid that he has not given
any compelling reason why we should overturn the Court of Appeals, which found no
convincing reason to overrule Secretary Santos in denying his requests. Besides,
postponements are a matter of discretion on the part of the hearing officer, and
based on Mayor Ganzon's above story, we are not convinced that the Secretary has
been guilty of a grave abuse of discretion.
The Court can not say, under these circumstances, that Secretary Santos' actuations
deprived Mayor Ganzon of due process of law.
We come to the core question: Whether or not the Secretary of Local Government, as
the President's alter ego, can suspend and/or remove local officials.
It is the petitioners' argument that the 1987 Constitution 20 no longer allows the
President, as the 1935 and 1973 Constitutions did, to exercise the power of
suspension and/or removal over local officials. According to both petitioners, the
Constitution is meant, first, to strengthen self-rule by local government units and
second, by deleting the phrase 21 as may be provided by law to strip the President of
the power of control over local governments. It is a view, so they contend, that finds
support in the debates of the Constitutional Commission. The provision in question
reads as follows:
Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities
and municipalities with respect to component barangays shall ensure that the acts of
their component units are within the scope of their prescribed powers and functions.
22
It modifies a counterpart provision appearing in the 1935 Constitution, which we
quote:
Sec. 10. The President shall have control of all the executive departments, bureaus, or
offices, exercise general supervision over all Local governments as may be provided
by law, and take care that the laws be faithfully executed. 23

The petitioners submit that the deletion (of "as may be provided by law") is
significant, as their argument goes, since: (1) the power of the President is "provided
by law" and (2) hence, no law may provide for it any longer.
It is to be noted that in meting out the suspensions under question, the Secretary of
Local Government acted in consonance with the specific legal provisions of Batas Blg.
337, the Local Government Code, we quote:
Sec. 62. Notice of Hearing. Within seven days after the complaint is filed, the
Minister of local Government, or the sanggunian concerned, as the case may be, shall
require the respondent to submit his verified answer within seven days from receipt of
said complaint, and commence the hearing and investigation of the case within ten
days after receipt of such answer of the respondent. No investigation shall be held
within ninety days immediately prior to an election, and no preventive suspension
shall be imposed with the said period. If preventive suspension has been imposed
prior to the aforesaid period, the preventive suspension shall be lifted. 24

responsibility under the Constitution and as the "supervision clause" itself suggest-is
to wean local government units from over-dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly selfexecuting, but subject to, among other things, the passage of a local government
code, 27 a local tax law, 28 income distribution legislation, 29 and a national
representation law, 30 and measures 31 designed to realize autonomy at the local
level. It is also noteworthy that in spite of autonomy, the Constitution places the local
government under the general supervision of the Executive. It is noteworthy finally,
that the Charter allows Congress to include in the local government code provisions
for removal of local officials, which suggest that Congress may exercise removal
powers, and as the existing Local Government Code has done, delegate its exercise to
the President. Thus:

Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the
Minister of Local Government if the respondent is a provincial or city official, by the
provincial governor if the respondent is an elective municipal official, or by the city or
municipal mayor if the respondent is an elective barangay official.

Sec. 3. The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their powers,
responsibilities and resources, and provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions and duties of local officials, and all
other matters relating to the organization and operation of the local units. 32

(2) Preventive suspension may be imposed at any time after the issues are joined,
when there is reasonable ground to believe that the respondent has committed the
act or acts complained of, when the evidence of culpability is strong, when the gravity
of the offense so warrants, or when the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence. In all cases, preventive suspension shall not extend beyond sixty days
after the start of said suspension.

As hereinabove indicated, the deletion of "as may be provided by law" was meant to
stress, sub silencio, the objective of the framers to strengthen local autonomy by
severing congressional control of its affairs, as observed by the Court of Appeals, like
the power of local legislation. 33 The Constitution did nothing more, however, and
insofar as existing legislation authorizes the President (through the Secretary of Local
Government) to proceed against local officials administratively, the Constitution
contains no prohibition.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated
in office without prejudice to the continuation of the proceedings against him until its
termination. However ' if the delay in the proceedings of the case is due to his fault,
neglect or request, the time of the delay shall not be counted in computing the time
of suspension. 25

The petitioners are under the impression that the Constitution has left the President
mere supervisory powers, which supposedly excludes the power of investigation, and
denied her control, which allegedly embraces disciplinary authority. It is a mistaken
impression because legally, "supervision" is not incompatible with disciplinary
authority as this Court has held, 34 thus:

The issue, as the Court understands it, consists of three questions: (1) Did the 1987
Constitution, in deleting the phrase "as may be provided by law" intend to divest the
President of the power to investigate, suspend, discipline, and/or remove local
officials? (2) Has the Constitution repealed Sections 62 and 63 of the Local
Government Code? (3) What is the significance of the change in the constitutional
language?

xxx xxx xxx

It is the considered opinion of the Court that notwithstanding the change in the
constitutional language, the charter did not intend to divest the legislature of its right
or the President of her prerogative as conferred by existing legislation to provide
administrative sanctions against local officials. It is our opinion that the omission (of
"as may be provided by law") signifies nothing more than to underscore local
governments' autonomy from congress and to break Congress' "control" over local
government affairs. The Constitution did not, however, intend, for the sake of local
autonomy, to deprive the legislature of all authority over municipal corporations, in
particular, concerning discipline.
Autonomy does not, after all, contemplate making mini-states out of local government
units, as in the federal governments of the United States of America (or Brazil or
Germany), although Jefferson is said to have compared municipal corporations
euphemistically to "small republics." 26 Autonomy, in the constitutional sense, is
subject to the guiding star, though not control, of the legislature, albeit the legislative

It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this
Court had occasion to discuss the scope and extent of the power of supervision by the
President over local government officials in contrast to the power of control given to
him over executive officials of our government wherein it was emphasized that the
two terms, control and supervision, are two different things which differ one from the
other in meaning and extent. Thus in that case the Court has made the following
digression: "In administration law supervision means overseeing or the power or
authority of an officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them the former may take such action or step as
prescribed by law to make them perform their duties. Control, on the other hand,
means the power of an officer to alter or modify or nullify of set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for that of the latter." But from this pronouncement it cannot
be reasonably inferred that the power of supervision of the President over local
government officials does not include the power of investigation when in his opinion
the good of the public service so requires, as postulated in Section 64(c) of the
Revised Administrative Code. ... 35
xxx xxx xxx

"Control" has been defined as "the power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for test of the latter." 36 "Supervision" on the
other hand means "overseeing or the power or authority of an officer to see that
subordinate officers perform their duties. 37 As we held, 38 however, "investigating"
is not inconsistent with "overseeing", although it is a lesser power than "altering". The
impression is apparently exacerbated by the Court's pronouncements in at least three
cases, Lacson v. Roque, 39 Hebron v. Reyes, 40 and Mondano v. Silvosa, 41 and
possibly, a fourth one, Pelaez v. Auditor General. 42 In Lacson, this Court said that
the President enjoyed no control powers but only supervision "as may be provided by
law," 43 a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated that the
President "may not . . . suspend an elective official of a regular municipality or take
any disciplinary action against him, except on appeal from a decision of the
corresponding provincial board." 44 However, neither Lacson nor Hebron nor
Mondano categorically banned the Chief Executive from exercising acts of disciplinary
authority because she did not exercise control powers, but because no law allowed
her to exercise disciplinary authority. Thus, according to Lacson:
The contention that the President has inherent power to remove or suspend municipal
officers is without doubt not well taken. Removal and suspension of public officers are
always controlled by the particular law applicable and its proper construction subject
to constitutional limitations. 45
In Hebron we stated:
Accordingly, when the procedure for the suspension of an officer is specified by law,
the same must be deemed mandatory and adhered to strictly, in the absence of
express or clear provision to the contrary-which does not et with respect to municipal
officers ... 46
In Mondano, the Court held:
... The Congress has expressly and specifically lodged the provincial supervision over
municipal officials in the provincial governor who is authorized to "receive and
investigate complaints made under oath against municipal officers for neglect of duty,
oppression, corruption or other form of maladministration of office, and conviction by
final judgment of any crime involving moral turpitude." And if the charges are serious,
"he shall submit written charges touching the matter to the provincial board,
furnishing a copy of such charges to the accused either personally or by registered
mail, and he may in such case suspend the officer (not being the municipal treasurer)
pending action by the board, if in his opinion the charge by one affecting the official
integrity of the officer in question." Section 86 of the Revised Administration Code
adds nothing to the power of supervision to be exercised by the Department Head
over the administration of ... municipalities ... . If it be construed that it does and such
additional power is the same authority as that vested in the Department Head by
section 79(c) of the Revised Administrative Code, then such additional power must be
deemed to have been abrogated by Section 110(l), Article VII of the Constitution. 47
xxx xxx xxx
In Pelaez, we stated that the President can not impose disciplinary measures on local
officials except on appeal from the provincial board pursuant to the Administrative
Code. 48
Thus, in those case that this Court denied the President the power (to
suspend/remove) it was not because we did not think that the President can not
exercise it on account of his limited power, but because the law lodged the power

elsewhere. But in those cases ii which the law gave him the power, the Court, as in
Ganzon v. Kayanan, found little difficulty in sustaining him. 49
The Court does not believe that the petitioners can rightfully point to the debates of
the Constitutional Commission to defeat the President's powers. The Court believes
that the deliberations are by themselves inconclusive, because although Commissioner
Jose Nolledo would exclude the power of removal from the President, 50
Commissioner Blas Ople would not. 51
The Court is consequently reluctant to say that the new Constitution has repealed the
Local Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are
not incompatible terms and one may stand with the other notwithstanding the
stronger expression of local autonomy under the new Charter. We have indeed held
that in spite of the approval of the Charter, Batas Blg. 337 is still in force and effect.
52
As the Constitution itself declares, local autonomy means "a more responsive and
accountable local government structure instituted through a system of
decentralization." 53 The Constitution as we observed, does nothing more than to
break up the monopoly of the national government over the affairs of local
governments and as put by political adherents, to "liberate the local governments
from the imperialism of Manila." Autonomy, however, is not meant to end the relation
of partnership and inter-dependence between the central administration and local
government units, or otherwise, to user in a regime of federalism. The Charter has
not taken such a radical step. Local governments, under the Constitution, are subject
to regulation, however limited, and for no other purpose than precisely, albeit
paradoxically, to enhance self- government.
As we observed in one case, 54 decentralization means devolution of national
administration but not power to the local levels. Thus:
Now, autonomy is either decentralization of administration or decentralization of
power. There is decentralization of administration when the central government
delegates administrative powers to political subdivisions in order to broaden the base
of government power and in the process to make local governments "more responsive
and accountable," and "ensure their fullest development as self-reliant communities
and make them more effective partners in the pursuit of national development and
social progress." At the same time, it relieves the central government of the burden of
managing local affairs and enables it to concentrate on national concerns. The
President exercises "general supervision" over them, but only to "ensure that local
affairs are administered according to law." He has no control over their acts in the
sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political power
in the favor of local governments units declared to be autonomous, In that case, the
autonomous government is free to chart its own destiny and shape its future with
minimum intervention from central authorities. According to a constitutional author,
decentralization of power amounts to "self-immolation," since in that event, the
autonomous government becomes accountable not to the central authorities but to its
constituency. 55
The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit
another matter. What bothers the Court, and what indeed looms very large, is the fact
that since the Mayor is facing ten administrative charges, the Mayor is in fact facing
the possibility of 600 days of suspension, in the event that all ten cases yield prima
facie findings. The Court is not of course tolerating misfeasance in public office
(assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly another

question to make him serve 600 days of suspension, which is effectively, to suspend
him out of office. As we held: 56
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of
office does not expire until 1986. Were it not for this information and the suspension
decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act,
he would have been all this while in the full discharge of his functions as such
municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has
been unable to. it is a basic assumption of the electoral process implicit in the right of
suffrage that the people are entitled to the services of elective officials of their choice.
For misfeasance or malfeasance, any of them could, of course, be proceeded against
administratively or, as in this instance, criminally. In either case, Ms culpability must
be established. Moreover, if there be a criminal action, he is entitled to the
constitutional presumption of innocence. A preventive suspension may be justified. Its
continuance, however, for an unreasonable length of time raises a due process
question. For even if thereafter he were acquitted, in the meanwhile his right to hold
office had been nullified. Clearly, there would be in such a case an injustice suffered
by him. Nor is he the only victim. There is injustice inflicted likewise on the people of
Lianga They were deprived of the services of the man they had elected to serve as
mayor. In that sense, to paraphrase Justice Cardozo, the protracted continuance of
this preventive suspension had outrun the bounds of reason and resulted in sheer
oppression. A denial of due process is thus quite manifest. It is to avoid such an
unconstitutional application that the order of suspension should be lifted. 57
The plain truth is that this Court has been ill at ease with suspensions, for the above
reasons, 58 and so also, because it is out of the ordinary to have a vacancy in local
government. The sole objective of a suspension, as we have held, 59 is simply "to
prevent the accused from hampering the normal cause of the investigation with his
influence and authority over possible witnesses" 60 or to keep him off "the records
and other evidence. 61
It is a means, and no more, to assist prosecutors in firming up a case, if any, against
an erring local official. Under the Local Government Code, it can not exceed sixty
days, 62 which is to say that it need not be exactly sixty days long if a shorter period
is otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors
have achieved their purpose in a shorter span.
Suspension is not a penalty and is not unlike preventive imprisonment in which the
accused is held to insure his presence at the trial. In both cases, the accused (the
respondent) enjoys a presumption of innocence unless and until found guilty.
Suspension finally is temporary and as the Local Government Code provides, it may
be imposed for no more than sixty days. As we held, 63 a longer suspension is unjust
and unreasonable, and we might add, nothing less than tyranny.
As we observed earlier, imposing 600 days of suspension which is not a remote
possibility Mayor Ganzon is to all intents and purposes, to make him spend the rest of
his term in inactivity. It is also to make, to all intents and purposes, his suspension
permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has
not been proven. Worse, any absolution will be for naught because needless to say,
the length of his suspension would have, by the time he is reinstated, wiped out his
tenure considerably.
The Court is not to be mistaken for obstructing the efforts of the respondent
Secretary to see that justice is done in Iloilo City, yet it is hardly any argument to
inflict on Mayor Ganzon successive suspensions when apparently, the respondent

Secretary has had sufficient time to gather the necessary evidence to build a case
against the Mayor without suspending him a day longer. What is intriguing is that the
respondent Secretary has been cracking down, so to speak, on the Mayor piecemeal
apparently, to pin him down ten times the pain, when he, the respondent Secretary,
could have pursued a consolidated effort.
We reiterate that we are not precluding the President, through the Secretary of
Interior from exercising a legal power, yet we are of the opinion that the Secretary of
Interior is exercising that power oppressively, and needless to say, with a grave abuse
of discretion.
The Court is aware that only the third suspension is under questions, and that any
talk of future suspensions is in fact premature. The fact remains, however, that Mayor
Ganzon has been made to serve a total of 120 days of suspension and the possibility
of sixty days more is arguably around the corner (which amounts to a violation of the
Local Government Code which brings to light a pattern of suspensions intended to
suspend the Mayor the rest of his natural tenure. The Court is simply foreclosing what
appears to us as a concerted effort of the State to perpetuate an arbitrary act.
As we said, we can not tolerate such a state of affairs.
We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third
suspension and lifting, for the purpose, the Temporary Restraining Order earlier
issued. Insofar as the seven remaining charges are concerned, we are urging the
Department of Local Government, upon the finality of this Decision, to undertake
steps to expedite the same, subject to Mayor Ganzon's usual remedies of appeal,
judicial or administrative, or certiorari, if warranted, and meanwhile, we are
precluding the Secretary from meting out further suspensions based on those
remaining complaints, notwithstanding findings of prima facie evidence.
In resume the Court is laying down the following rules:
1. Local autonomy, under the Constitution, involves a mere decentralization of
administration, not of power, in which local officials remain accountable to the central
government in the manner the law may provide;
2. The new Constitution does not prescribe federalism;
3. The change in constitutional language (with respect to the supervision clause) was
meant but to deny legislative control over local governments; it did not exempt the
latter from legislative regulations provided regulation is consistent with the
fundamental premise of autonomy;
4. Since local governments remain accountable to the national authority, the latter
may, by law, and in the manner set forth therein, impose disciplinary action against
local officials;
5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does
not signify "control" (which the President does not have);
6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered,
but may no longer be suspended for the offenses he was charged originally; provided:
a) that delays in the investigation of those charges "due to his fault, neglect or
request, (the time of the delay) shall not be counted in computing the time of
suspension. [Supra, sec. 63(3)]

b) that if during, or after the expiration of, his preventive suspension, the petitioner
commits another or other crimes and abuses for which proper charges are filed
against him by the aggrieved party or parties, his previous suspension shall not be a
bar to his being preventively suspended again, if warranted under subpar. (2), Section
63 of the Local Government Code.
WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary
Restraining Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED,
provided that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve future
suspensions on account of any of the remaining administrative charges pending
against him for acts committed prior to August 11, 1988. The Secretary of Interior is
ORDERED to consolidate all such administrative cases pending against Mayor Ganzon.
The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is
AFFIRMED. No costs.

LEAGUE OF PROVINCES OF THE PHILS V. DENR (2013) | PERALTA, J.

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

which date of denial of Golden Falcon's application/appeal April 29, 1998 or July 16,
2004 is to be considered in the deliberation of the Provincial Mining Regulatory
Board (PMRB) for the purpose of determining when the land subject of the
Applications for Quarry Permit could be considered open for application.
On June 28, 2005, Provincial Legal Officer Eugenio Resurreccion issued a legal opinion
stating that the Order dated July 16, 2004 of the MGB-Central Office was a mere
reaffirmation of the Order dated April 29, 1998 of the MGB R-III; hence, the Order
dated April 29, 1998 should be the reckoning period of the denial of the application of
Golden Falcon.
On July 22, 2005, AMTC filed with the PMRB of Bulacan a formal protest against the
aforesaid Applications for Quarry Permit on the ground that the subject area was
already covered by its Application for Exploration Permit.9
On August 8, 2005, MGB R-III Director Cabantog, who was the concurrent Chairman
of the PMRB, endorsed to the Provincial Governor of Bulacan, Governor Josefina M.
dela Cruz, the aforesaid Applications for Quarry Permit that had apparently been
converted to Applications for Small-Scale Mining Permit of Eduardo D. Mercado,
Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez (formerly Liberato
Sembrano).10
On August 9, 2005, the PENRO of Bulacan issued four memoranda recommending to
Governor Dela Cruz the approval of the aforesaid Applications for Small-Scale Mining
Permit.11
On August 10, 2005, Governor Dela Cruz issued the corresponding Small-Scale Mining
Permits in favor of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila
S. Valdez.12
Subsequently, AMTC appealed to respondent DENR Secretary the grant of the
aforesaid Small-Scale Mining Permits, arguing that: (1) The PMRB of Bulacan erred in
giving due course to the Applications for Small-Scale Mining Permit without first
resolving its formal protest; (2) The areas covered by the Small-Scale Mining Permits
fall within the area covered by AMTC's valid prior Application for Exploration Permit;
(3) The Applications for Quarry Permit were illegally converted to Applications for
Small-Scale Mining Permit; (4) DENR-MGB Director Horacio C. Ramos' ruling that the
subject areas became open for mining location only on August 11, 2004 was
controlling; (5) The Small-Scale Mining Permits were null and void because they
covered areas that were never declared People's Small-Scale Mining Program sites as
mandated by Section 4 of the People's Small-Scale Mining Act of 1991; and (6) Iron
ore is not considered as one of the quarry resources, as defined by Section 43 of the
Philippine Mining Act of 1995, which could be subjects of an Application for Quarry
Permit.13
On August 8, 2006, respondent DENR Secretary rendered a Decision14 in favor of
AMTC. The DENR Secretary agreed with MGB Director Horacio C. Ramos that the area
was open to mining location only on August 11, 2004, fifteen (15) days after the
receipt by Golden Falcon on July 27, 2004 of a copy of the MGB-Central Office's Order
dated July 16, 2004, which Order denied Golden Falcon's appeal. According to the
DENR Secretary, the filing by Golden Falcon of the letter-appeal suspended the finality
of the Order of denial issued on April 29, 1998 by the Regional Director until the
resolution of the appeal on July 16, 2004 by the MGB-Central Office. He stated that
the Applications for Quarry Permit were filed on February 10, 2004 when the area was
still closed to mining location; hence, the Small-Scale Mining Permits granted by the
PMRB and the Governor were null and void. On the other hand, the DENR Secretary
declared that AMTC filed its Application for Exploration Permit when the area was
already open to other mining applicants; thus, AMTCs Application for Exploration

Permit was valid. Moreover, the DENR Secretary held that the questioned Small-Scale
Mining Permits were issued in violation of Section 4 of R.A. No. 7076 and beyond the
authority of the Provincial Governor pursuant to Section 43 of R.A. No. 7942, because
the area was never proclaimed to be under the People's Small-Scale Mining Program.
Further, the DENR Secretary stated that iron ore mineral is not considered among the
quarry resources.
The dispositive portion of the DENR Secretarys Decision reads:
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines
and Trading Corp. is declared valid and may now be given due course. The SmallScale Mining Permits, SSMP-B-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D.
Mercado, SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-005-05 of Lucila S. Valdez
are declared NULL AND VOID. Consequently, the said permits are hereby
CANCELLED.15
Hence, petitioner League of Provinces filed this petition.
Petitioner is a duly organized league of local governments incorporated under R.A. No.
7160. Petitioner declares that it is composed of 81 provincial governments, including
the Province of Bulacan. It states that this is not an action of one province alone, but
the collective action of all provinces through the League, as a favorable ruling will not
only benefit one province, but all provinces and all local governments.
Petitioner raises these issues:
I
WHETHER OR NOT SECTION 17(B)(3)(III) OF THE, 1991 LOCAL GOVERNMENT
CODE AND SECTION 24 OF THE PEOPLE'S SMALL-SCALE MINING ACT OF 1991 ARE
UNCONSTITUTIONAL FOR PROVIDING FOR EXECUTIVE CONTROL AND INFRINGING
UPON THE LOCAL AUTONOMY OF PROVINCES.
II
WHETHER OR NOT THE ACT OF RESPONDENT [DENR] IN NULLIFYING, VOIDING
AND CANCELLING THE SMALL-SCALE MINING PERMITS AMOUNTS TO EXECUTIVE
CONTROL, NOT MERELY SUPERVISION AND USURPS THE DEVOLVED POWERS OF
ALL PROVINCES.16
To start, the Court finds that petitioner has legal standing to file this petition because
it is tasked under Section 504 of the Local Government Code of 1991 to promote local
autonomy at the provincial level;17 adopt measures for the promotion of the welfare
of all provinces and its officials and employees;18 and exercise such other powers and
perform such other duties and functions as the league may prescribe for the welfare
of the provinces.19
Before this Court determines the validity of an act of a co-equal and coordinate
branch of the Government, it bears emphasis that ingrained in our jurisprudence is
the time-honored principle that a statute is presumed to be valid.20 This presumption
is rooted in the doctrine of separation of powers which enjoins upon the three
coordinate departments of the Government a becoming courtesy for each other's
acts.21 This Court, however, may declare a law, or portions thereof, unconstitutional
where a petitioner has shown a clear and unequivocal breach of the Constitution,22
leaving no doubt or hesitation in the mind of the Court.23
In this case, petitioner admits that respondent DENR Secretary had the authority to
nullify the Small-Scale Mining Permits issued by the Provincial Governor of Bulacan, as

the DENR Secretary has control over the PMRB, and the implementation of the SmallScale Mining Program is subject to control by respondent DENR.
Control of the DENR/DENR Secretary over small-scale mining in the provinces is
granted by three statutes: (1) R.A. No. 7061 or The Local Government Code of 1991;
(2) R.A. No. 7076 or the People's Small Scale Mining Act of 1991; and (3) R.A. No.
7942, otherwise known as the Philippine Mining Act of 1995.24 The pertinent
provisions of law sought to be declared as unconstitutional by petitioner are as
follows:
R.A. No. 7061 (The Local Government Code of 1991)
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to
be self-reliant and shall continue exercising the powers and discharging the duties and
functions currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them pursuant to this
Code. Local government units shall likewise exercise such other powers and discharge
such other functions and responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
xxxx
(3) For a Province:c
xxxx
(iii) Pursuant to national policies and subject to supervision, control and review of the
DENR, enforcement of forestry laws limited to community-based forestry projects,
pollution control law, small-scale mining law, and other laws on the protection of the
environment; and mini-hydro electric projects for local purposes; x x x25
R.A. No. 7076 (People's Small-Scale Mining Act of 1991)
Sec. 24. Provincial/City Mining Regulatory Board. - There is hereby created under the
direct supervision and control of the Secretary a provincial/city mining regulatory
board, herein called the Board, which shall be the implementing agency of the
Department, and shall exercise the following powers and functions, subject to review
by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a peoples
small-scale mining area, an area that is declared a small-mining; and
(f) Perform such other functions as may be necessary to achieve the goals and
objectives of this Act.26
Petitioner contends that the aforecited laws and DENR Administrative Order No. 9640
(the Implementing Rules and Regulations of the Philippine Mining Act of 1995) did not
explicitly confer upon respondents DENR and the DENR Secretary the power to

reverse, abrogate, nullify, void, or cancel the permits issued by the Provincial
Governor or small-scale mining contracts entered into by the PMRB. The statutes are
also silent as to the power of respondent DENR Secretary to substitute his own
judgment over that of the Provincial Governor and the PMRB.
Moreover, petitioner contends that Section 17 (b)(3)(iii) of the Local Government
Code of 1991 and Section 24 of R.A. No. 7076, which confer upon respondents DENR
and the DENR Secretary the power of control are unconstitutional, as the Constitution
states that the President (and Executive Departments and her alter-egos) has the
power of supervision only, not control, over acts of the local government units, and
grants the local government units autonomy, thus:
The 1987 Constitution:
Article X, Section 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to component cities and
municipalities, and cities and municipalities with respect to component barangays,
shall ensure that the acts of their component units are within the scope of their
prescribed powers and functions.27
Petitioner contends that the policy in the above-cited constitutional provision is
mirrored in the Local Government Code, which states:
SEC. 25. National Supervision over Local Government Units. - (a) Consistent with
the basic policy on local autonomy, the President shall exercise general supervision
over local government units to ensure that their acts are within the scope of their
prescribed powers and functions.
The President shall exercise supervisory authority directly over provinces, highly
urbanized cities, and independent component cities; through the province with respect
to component cities and municipalities; and through the city and municipality with
respect to barangays.28
Petitioner contends that the foregoing provisions of the Constitution and the Local
Government Code of 1991 show that the relationship between the President and the
Provinces or respondent DENR, as the alter ego of the President, and the Province of
Bulacan is one of executive supervision, not one of executive control. The term
"control" has been defined as the power of an officer to alter or modify or set aside
what a subordinate officer had done in the performance of his/her duties and to
substitute the judgment of the former for the latter, while the term "supervision" is
the power of a superior officer to see to it that lower officers perform their function in
accordance with law.29
Petitioner argues that respondent DENR Secretary went beyond mere executive
supervision and exercised control when he nullified the small-scale mining permits
granted by the Provincial Governor of Bulacan, as the former substituted the
judgment of the latter.
Petitioner asserts that what is involved here is a devolved power.
Under the Local Government Code of 1991, the power to regulate small-scale mining
has been devolved to all provinces. In the exercise of devolved powers, departmental
approval is not necessary.30
Petitioner contends that if the provisions in Section 24 of R.A. No. 7076 and Section
17 (b)(3)(iii) of the Local Government Code of 1991 granting the power of control to
the DENR/DENR Secretary are not nullified, nothing would stop the DENR Secretary

from nullifying, voiding and canceling the small-scale mining permits that have been
issued by a Provincial Governor.
Petitioner submits that the statutory grant of power of control to respondents is
unconstitutional, as the Constitution only allows supervision over local governments
and proscribes control by the executive departments.
In its Comment, respondents, represented by the Office of the Solicitor General,
stated that contrary to the assertion of petitioner, the power to implement the smallscale mining law is expressly limited in Section 17 (b)(3)(iii) of the Local Government
Code, which provides that it must be carried out "pursuant to national policies and
subject to supervision, control and review of the DENR." Moreover, the fact that the
power to implement the small-scale mining law has not been fully devolved to
provinces is further amplified by Section 4 of the People's Small-Scale Mining Act of
1991, which provides, among others, that the People's Small-Scale Mining Program
shall be implemented by the DENR Secretary.
The petition lacks merit.
Paragraph 1 of Section 2, Article XII (National Economy and Patrimony) of the
Constitution31 provides that "the exploration, development and utilization of natural
resources shall be under the full control and supervision of the State."
Moreover, paragraph 3 of Section 2, Article XII of the Constitution provides that "the
Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens x x x."
Pursuant to Section 2, Article XII of the Constitution, R.A. No. 7076 or the People's
Small-Scale Mining Act of 1991, was enacted, establishing under Section 4 thereof a
People's Small-Scale Mining Program to be implemented by the DENR Secretary in
coordination with other concerned government agencies.
The People's Small-Scale Mining Act of 1991 defines "small-scale mining" as
"refer[ring] to mining activities, which rely heavily on manual labor using simple
implement and methods and do not use explosives or heavy mining equipment."32
It should be pointed out that the Administrative Code of 198733 provides that the
DENR is, subject to law and higher authority, in charge of carrying out the State's
constitutional mandate, under Section 2, Article XII of the Constitution, to control and
supervise the exploration, development, utilization and conservation of the country's
natural resources. Hence, the enforcement of small-scale mining law in the provinces
is made subject to the supervision, control and review of the DENR under the Local
Government Code of 1991, while the Peoples Small-Scale Mining Act of 1991 provides
that the Peoples Small-Scale Mining Program is to be implemented by the DENR
Secretary in coordination with other concerned local government agencies.
Indeed, Section 4, Article X (Local Government) of the Constitution states that "[t]he
President of the Philippines shall exercise general supervision over local
governments," and Section 25 of the Local Government Code reiterates the same.
General supervision by the President means no more than seeing to it that laws are
faithfully executed or that subordinate officers act within the law.34
The Court has clarified that the constitutional guarantee of local autonomy in the
Constitution Art. X, Sec. 2 refers to the administrative autonomy of local government
units or, cast in more technical language, the decentralization of government
authority.35 It does not make local governments sovereign within the State.36
Administrative autonomy may involve devolution of powers, but subject to limitations
like following national policies or standards,37 and those provided by the Local

Government Code, as the structuring of local governments and the allocation of

powers, responsibilities, and resources among the different local government units
and local officials have been placed by the Constitution in the hands of Congress38
under Section 3, Article X of the Constitution.
Section 3, Article X of the Constitution mandated Congress to "enact a local
government code which shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local
government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the organization
and operation of the local units."
In connection with the enforcement of the small-scale mining law in the province,
Section 17 of the Local Government Code provides:
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor
to be self-reliant and shall continue exercising the powers and discharging the duties
and functions currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them pursuant to this
Code. Local government units shall likewise exercise such other powers and discharge
such other functions and responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
xxxx
(3) For a Province:c
xxxx
(iii) Pursuant to national policies and subject to supervision, control and review of
the DENR, enforcement of forestry laws limited to community-based forestry projects,
pollution control law, small-scale mining law, and other laws on the protection of the
environment; and mini-hydro electric projects for local purposes;39
Clearly, the Local Government Code did not fully devolve the enforcement of the
small-scale mining law to the provincial government, as its enforcement is subject to
the supervision, control and review of the DENR, which is in charge, subject to law
and higher authority, of carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization of the country's natural
resources.40
Section 17 (b)(3)(iii) of the Local Government Code of 1991 is in harmony with
R.A. No. 7076 or the People's Small-Scale Mining Act of 1991,41 which established a
People's Small-Scale Mining Program to be implemented by the Secretary of the
DENR, thus:
Sec. 2. Declaration of Policy. It is hereby declared of the State to promote,
develop, protect and rationalize viable small-scale mining activities in order to
generate more employment opportunities and provide an equitable sharing of the
nation's wealth and natural resources, giving due regard to existing rights as herein
provided.
xxxx

Sec. 4. People's Small-Scale Mining Program. - For the purpose of carrying out the
declared policy provided in Section 2 hereof, there is hereby established a People's
Small-Scale Mining Program to be implemented by the Secretary of the Department of
Environment and Natural Resources, hereinafter called the Department, in
coordination with other concerned government agencies, designed to achieve an
orderly, systematic and rational scheme for the small-scale development and
utilization of mineral resources in certain mineral areas in order to address the social,
economic, technical, and environmental problems connected with small-scale mining
activities.
xxxx
Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created under
the direct supervision and control of the Secretary a provincial/city mining regulatory
board, herein called the Board, which shall be the implementing agency of the
Department, and shall exercise the following powers and functions, subject to review
by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a peoples
small-scale mining area, an area that is declared a small-mining; and
(f) Perform such other functions as may be necessary to achieve the goals and
objectives of this Act.42
DENR Administrative Order No. 34, series of 1992, containing the Rules and
Regulations to implement R.A. No. 7076, provides:
SEC. 21. Administrative Supervision over the People's Small-Scale Mining Program.
The following DENR officials shall exercise the following supervisory functions in the
implementation of the Program:
21.1 DENR Secretrary direct supervision and control over the program and
activities of the small-scale miners within the people's small-scale mining area;
21.2 Director the Director shall:
a. Recommend the depth or length of the tunnel or adit taking into account the:
(1) size of membership and capitalization of the cooperative; (2) size of mineralized
areas; (3) quantity of mineral deposits; (4) safety of miners; and (5) environmental
impact and other considerations;
b. Determine the right of small-scale miners to existing facilities in consultation
with the operator, claimowner, landowner or lessor of an affected area upon
declaration of a small-scale mining area;
c. Recommend to the Secretary the withdrawal of the status of the people's smallscale mining area when it can no longer be feasibly operated on a small-scale basis;
and

d. See to it that the small-scale mining contractors abide by small-scale mines

safety rules and regulations.
xxxx
SEC. 22. Provincial/City Mining Regulatory Board. The Provincial/City Mining
Regulatory Board created under R.A. 7076 shall exercise the following powers and
functions, subject to review by the Secretary:
22.1 Declares and segregates existing gold rush area for small-scale mining;
22.2 Reserves for the future, mineralized areas/mineral lands for people's smallscale mining;
22.3 Awards contracts to small-scale miners cooperative;
22.4 Formulates and implements rules and regulations related to R.A. 7076;
22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety
(90) days upon filing of protests or complaints; Provided, That any aggrieved party
may appeal within five (5) days from the Board's decision to the Secretary for final
resolution otherwise the same is considered final and executory; and
22.6 Performs such other functions as may be necessary to achieve the goals and
objectives of R.A. 7076.
SEC. 6. Declaration of People's Small-Scale Mining Areas. The Board created
under R.A. 7076 shall have the authority to declare and set aside People's Small-Scale
Mining Areas in sites onshore suitable for small-scale mining operations subject to
review by the DENR Secretary thru the Director.43
DENR Administrative Order No. 23, otherwise known as the Implementing Rules and
Regulations of R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995,
adopted on August 15, 1995, provides under Section 12344 thereof that small-scale
mining applications should be filed with the PMRB45 and the corresponding permits
shall be issued by the Provincial Governor, except small-scale mining applications
within the mineral reservations.
Thereafter, DENR Administrative Order No. 96-40, otherwise known as the Revised
Implementing Rules and Regulations of R.A. No. 7942, otherwise known as the
Philippine Mining Act of 1995, adopted on December 19, 1996, provides that
applications for Small-Scale Mining Permits shall be filed with the Provincial
Governor/City Mayor through the concerned Provincial/City Mining Regulatory Board
for areas outside the Mineral Reservations and with the Director though the Bureau
for areas within the Mineral Reservations.46 Moreover, it provides that Local
Government Units shall, in coordination with the Bureau/ Regional Offices and subject
to valid and existing mining rights, "approve applications for small-scale mining, sand
and gravel, quarry x x x and gravel permits not exceeding five (5) hectares."47
Petitioner contends that the Local Government Code of 1991, R.A. No. 7076, DENR
Administrative Orders Nos. 95-23 and 96-40 granted the DENR Secretary the broad
statutory power of control, but did not confer upon the respondents DENR and DENR
Secretary the power to reverse, abrogate, nullify, void, cancel the permits issued by
the Provincial Governor or small-scale mining contracts entered into by the Board.
The contention does not persuade.

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

The DENR Secretary found the appeal meritorious, and resolved these pivotal issues:
(1) when is the subject mining area open for mining location by other applicants; and
(2) who among the applicants have valid applications.1wphi1 The pertinent portion
of the decision of the DENR Secretary reads:
We agree with the ruling of the MGB Director that the area is open only to mining
location on August 11, 2004, fifteen (15) days after the receipt by Golden Falcon on
July 27, 2004 of a copy of the subject Order of July 16, 2004.1wphi1 The filing by
Golden Falcon of the letter-appeal suspended the finality of the Order of Denial issued
on April 29, 1998 by the Regional Director until the Resolution thereof on July 16,
2004.
Although the subject AQPs/SSMPs were processed in accordance with the procedures
of the PMRB, however, the AQPs were filed on February 10, 2004 when the area is
still closed to mining location. Consequently, the SSMPs granted by the PMRB and the
Governor are null and void making thereby AEP No. III-02-04 of the AMTC valid, it
having been filed when the area is already open to other mining applicants.
Records also show that the AQPs were converted into SSMPs. These are two (2)
different applications. The questioned SSMPs were issued in violation of Section 4 of
RA 7076 and beyond the authority of the Provincial Governor pursuant to Section 43
of RA 7942 because the area was never proclaimed as "People's Small-Scale Mining
Program." Moreover, iron ore mineral is not considered among the quarry resources.
xxxx
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines
and Trading Corp. is declared valid and may now be given due course. The SmallScale Mining Permits, SSMP-B-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D.
Mercado, SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-005-05 of Lucila S. Valdez
are declared NULL AND VOID. Consequently, the said permits are hereby
CANCELLED.50
The Court finds that the decision of the DENR Secretary was rendered in accordance
with the power of review granted to the DENR Secretary in the resolution of disputes,
which is provided for in Section 24 of R.A. No. 707651 and Section 22 of its
Implementing Rules and Regulations.52 It is noted that although AMTC filed a protest
with the PMRB regarding its superior and prior Application for Exploration Permit over
the Applications for Quarry Permit, which were converted to Small-Scale Mining
Permits, the PMRB did not resolve the same, but issued Resolution Nos. 05-08 to 0511 on August 8, 2005, resolving to submit to the Provincial Governor of Bulacan the
Applications for Small-Scale Mining Permits of Eduardo Mercado, Benedicto Cruz,
Lucila Valdez and Gerardo Cruz for the granting of the said permits. After the
Provincial Governor of Bulacan issued the Small-Scale Mining Permits on August 10,
2005, AMTC appealed the Resolutions of the PMRB giving due course to the granting
of the Small-Scale Mining Permits by the Provincial Governor.
Hence, the decision of the DENR Secretary, declaring that the Application for
Exploration Permit of AMTC was valid and may be given due course, and canceling the
Small-Scale Mining Permits issued by the Provincial Governor, emanated from the
power of review granted to the DENR Secretary under R.A. No. 7076 and its
Implementing Rules and Regulations. The DENR Secretary's power to review and,
therefore, decide, in this case, the issue on the validity of the issuance of the SmallScale Mining Permits by the Provincial Governor as recommended by the PMRB, is a
quasi-judicial function, which involves the determination of what the law is, and what
the legal rights of the contending parties are, with respect to the matter in
controversy and, on the basis thereof and the facts obtaining, the adjudication of their
respective rights.53 The DENR Secretary exercises quasi-judicial function under R.A.

No. 7076 and its Implementing Rules and Regulations to the extent necessary in
settling disputes, conflicts or litigations over conflicting claims. This quasi-judicial
function of the DENR Secretary can neither be equated with "substitution of
judgment" of the Provincial Governor in issuing Small-Scale Mining Permits nor
"control" over the said act of the Provincial Governor as it is a determination of the
rights of AMTC over conflicting claims based on the law.
In determining whether Section 17 (b)(3)(iii) of the Local Government Code of 1991
and Section 24 of R.A. No. 7076 are unconstitutional, the Court has been guided by
Beltran v. The Secretary of Health, 54 which held:
The fundamental criterion is that all reasonable doubts should be resolved in favor of
the constitutionality of a statute. Every law has in its favor the presumption of
constitutionality. For a law to be nullified, it must be shown that there is a clear and
unequivocal breach of the Constitution. The ground for nullity must be clear and
beyond reasonable doubt. Those who petition this Court to declare a law, or parts
thereof, unconstitutional must clearly establish the basis therefor. Otherwise, the
petition must fail. 55
In this case, the Court finds that the grounds raised by petitioner to challenge the
constitutionality of Section 17 (b )(3)(iii) of the Local Government Code of 1991 and
Section 24 'of R.A. No.7076 failed to overcome the constitutionality of the said
provisions of law.
WHEREFORE, the petition is DISMISSED for lack of merit.

BORJA V. COMELEC (1998) | MENDOZA, J.

This case presents for determination the scope of the constitutional provision barring
elective local officials, with the exception of barangay officials, from serving more than
three consecutive terms. In particular, the question is whether a vice-mayor who
succeeds to the office of mayor by operation of law and serves the remainder of the
term is considered to have served a term in that office for the purpose of the threeterm limit.

Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):

Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January
18, 1988 for a term ending June 30, 1992. On September 2, 1989, he became mayor,
by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992,
he ran and was elected mayor for a term of three years which ended on June 30,
1995. On May 8, 1995, he was reelected mayor for another term of three years
ending June 30, 1998. 1

Sec. 43. Term of Office. . . .

On March 27, 1998, private respondent Capco filed a certificate of candidacy for
mayor of Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja
Jr., who was also a candidate for mayor, sought Capco's disqualification on the theory
that the latter would have already served as mayor for three consecutive terms by
June 30, 1998 and would therefore be ineligible to serve for another term after that.

First, to prevent the establishment of political dynasties is not the only policy
embodied in the constitutional provision in question. The other policy is that of
enhancing the freedom of choice of the people. To consider, therefore, only stay in
office regardless of how the official concerned came to that office whether by
election or by succession by operation of law would be to disregard one of the
purposes of the constitutional provision in question.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor
of petitioner and declared private respondent Capco disqualified from running for
reelection as mayor of Pateros. 2 However, on motion of private respondent the
COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to
run for mayor in the May 11, 1998 elections. 3 The majority stated in its decision:
In both the Constitution and the Local Government Code, the three-term limitation
refers to the term of office for which the local official was elected. It made no
reference to succession to an office to which he was not elected. In the case before
the Commission, respondent Capco was not elected to the position of Mayor in the
January 18, 1988 local elections. He succeeded to such office by operation of law and
served for the unexpired term of his predecessor. Consequently, such succession into
office is not counted as one (1) term for purposes of the computation of the threeterm limitation under the Constitution and the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558
votes against petitioner's 7,773 votes and was proclaimed elected by the Municipal
Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated My 7, 1998,
of the COMELEC and to seek a declaration that private respondent is disqualified to
serve another term as mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capco's service as mayor from September
2, 1989 to June 30, 1992 should be considered as service for one full term, and since
he thereafter served from 1992 to 1998 two more terms as mayor, he should be
considered to have served three consecutive terms within the contemplation of Art. X,
8 of the Constitution and 43(b) of the Local Government Code. Petitioner stresses
the fact that, upon the death of Mayor Cesar Borja on September 2, 1989, private
respondent became the mayor and thereafter served the remainder of the term.
Petitioner argues that it is irrelevant that private respondent became mayor by
succession because the purpose of the constitutional provision in limiting the number
of terms elective local officials may serve is to prevent a monopolization of political
power.
This contention will not bear analysis. Article X, 8 of the Constitution provides:

(b) No local elective official shall serve for more than three (3) consecutive terms in
the same position. Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of service for the full term for which
the elective official concerned was elected. . . .

Thus, a consideration of the historical background of Article X, 8 of the Constitution

reveals that the members of the Constitutional Commission were as much concerned
with preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine
years there should be no further reelection for local and legislative officials. Instead,
they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the of the succeeding
election following the expiration of the third consecutive term. 4 Monsod warned
against "prescreening candidates [from] whom the people will choose" as a result of
the proposed absolute disqualification, considering that the draft constitution
contained provisions "recognizing people's power." 5
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a
perpetual disqualification on those who have served their terms in accordance with
the limits on consecutive service as decided by the Constitutional Commission. I would
be very wary about this Commission exercising a sort of omnipotent power in order to
disqualify those who will already have served their terms from perpetuating
themselves in office. I think the Commission achieves its purpose in establishing
safeguards against the excessive accumulation of power as a result of consecutive
terms. We do put a cap on consecutive service in the case of the President, six
years, in the case of the Vice-President, unlimited; and in the case of the Senators,
one reelection. In the case of the Members of Congress, both from the legislative
districts and from the party list and sectoral representation, this is now under
discussion and later on the policy concerning local officials will be taken up by the
Committee on Local Governments. The principle remains the same. I think we want to
prevent future situations where, as a result of continuous service and frequent
reelections, officials from the President down to the municipal mayor tend to develop
a proprietary interest in their positions and to accumulate those powers and
perquisites that permit them to stay on indefinitely or to transfer these posts to
members of their families in a subsequent election. I think that is taken care of
because we put a gap on the continuity or the unbroken service of all of these
officials. But where we now decide to put these prospective servants of the people or

politicians, if we want to use the coarser term, under a perpetual disqualification, I

have a feeling that we are taking away too much from the people, whereas we should
be giving as much to the people as we can in terms of their own freedom of choice. .
..6
Other commissioners went on record against "perpetually disqualifying" elective
officials who have served a certain number of terms as this would deny the right of
the people to choose. As Commissioner Yusup R. Abubakar asked, "why should we
arrogate unto ourselves the right to decide what the people want?" 7
Commissioner Felicitas S. Aquino spoke in the same vein when she called on her
colleagues to "allow the people to exercise their own sense of proportion and [rely] on
their own strength to curtail power when it overreaches itself." 8
Commissioner Teodoro C. Bacani stressed: "Why should we not leave [perpetual
disqualification after serving a number of terms] to the premise accepted by
practically everybody here that our people are politically mature? Should we use this
assumption only when it is convenient for us, and not when it may also lead to a
freedom of choice for the people and for politicians who may aspire to serve them
longer?" 9
Two ideas thus emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern about
the accumulation of power as a result of a prolonged stay in office. The second is the
idea of election, derived from the concern that the right of the people to choose those
whom they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution
did so on the assumption that the officials concerned were serving by reason of
election. This is clear from the following exchange in the Constitutional Commission
concerning term limits, now embodied in Art. VI, 4 and 7 of the Constitution, for
members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second
term. We will allow the Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen will
remember was: How long will that period of rest be? Will it be one election which is
three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the
view that during the election following the expiration of the first 12 years, whether
such election will be on the third year or on the sixth year thereafter, this particular
member of the Senate can run. So, it is not really a period of hibernation for six years.
That was the Committee's stand. 10
Indeed a fundamental tenet of representative democracy is that the people should be
allowed to choose those whom they please to govern them. 11 To bar the election of
a local official because he has already served three terms, although the first as a
result of succession by operation of law rather than election, would therefore be to
violate this principle.
Second, not only historical examination but textual analysis as well supports the ruling
of the COMELEC that Art. X, 8 contemplates service by local officials for three
consecutive terms as a result of election. The first sentence speaks of "the term of
office of elective local officials" and bars "such official[s]" from serving for more than

three consecutive terms. The second sentence, in explaining when an elective local
official may be deemed to have served his full term of office, states that "voluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected."
The term served must therefore be one "for which [the official concerned] was
elected." The purpose of this provision is to prevent a circumvention of the limitation
on the number of terms an elective local official may serve. Conversely, if he is not
serving a term for which he was elected because he is simply continuing the service of
the official he succeeds, such official cannot be considered to have fully served the
term notwithstanding his voluntary renunciation of office prior to its expiration.
Reference is made to Commissioner Bernas' comment on Art. VI, 7, which similarly
bars members of the House of Representatives from serving for more than three
terms. Commissioner Bernas states that "if one is elected Representative to serve the
unexpired term of another, that unexpired term, no matter how short, will be
considered one term for the purpose of computing the number of successive terms
allowed." 12
This is actually based on the opinion expressed by Commissioner Davide in answer to
a query of Commissioner Suarez: "For example, a special election is called for a
Senator, and the Senator newly elected would have to serve the unexpired portion of
the term. Would that mean that serving the unexpired portion of the term is already
considered one term? So, half a term, which is actually the correct statement, plus
one term would disqualify the Senator concerned from running? Is that the meaning
of this provision on disqualification, Madam President?" Commissioner Davide said:
"Yes, because we speak of "term," and if there is a special election, he will serve only
for the unexpired portion of that particular term plus one more term for the Senator
and two more terms for the Members of the Lower House." 13
There is a difference, however, between the case of a vice-mayor and that of a
member of the House of Representatives who succeeds another who dies, resigns,
becomes incapacitated, or is removed from office. The vice-mayor succeeds to the
mayorship by operation of law. 14 On the other hand, the Representative is elected to
fill the vacancy. 15 In a real sense, therefore, such Representative serves a term for
which he was elected. As the purpose of the constitutional provision is to limit the
right to be elected and to serve in Congress, his service of the unexpired term is
rightly counted as his first term. Rather than refute what we believe to be the
intendment of Art. X, 8 with regard to elective local officials, the case of a
Representative who succeeds another confirms the theory.
Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of
the Vice-President to the Presidency in case of vacancy in that office. After stating
that "The President shall not be eligible for any reelection," this provision says that
"No person who has succeeded as President and has served as such for more than
four years shall be qualified for election to the same office at any time." Petitioner
contends that, by analogy, the vice-mayor should likewise be considered to have
served a full term as mayor if he succeeds to the latter's office and serves for the
remainder of the term.
The framers of the Constitution included such a provision because, without it, the
Vice-President, who simply steps into the Presidency by succession, would be qualified
to run President even if he has occupied that office for more than four years. The
absence of a similar provision in Art. X, 8 on elective local officials throws in bold
relief the difference between the two cases. It underscores the constitutional intent to
cover only the terms of office to which one may have been elected for purposes of the
three-term limit on local elective officials, disregarding for this purpose service by
automatic succession.

There is another reason why the Vice-President who succeeds to the Presidency and
serves in that office for more than four years is ineligible for election as President. The
Vice-President is elected primarily to succeed the President in the event of the latter's
death, permanent disability, removal, or resignation. While he may be appointed to
the cabinet, his becoming, so is entirely dependent on the good graces of the
President. In running for Vice-President, he may thus be said to also seek the
Presidency. For their part, the electors likewise choose as Vice-President the candidate
who they think can fill the Presidency in the event it becomes vacant. Hence, service
in the Presidency for more than four years may rightly be considered as service for a
full term.
This is not so in the case of the vice-mayor. Under the Local Government Code, he is
the presiding officer of the sanggunian and he appoints all officials and employees of
such local assembly. He has distinct powers and functions, succession to mayorship in
the event of vacancy therein being only one of
them. 16 It cannot be said of him, as much as of the Vice-President in the event of a
vacancy in the Presidency, that, in running for vice-mayor, he also seeks the
mayorship. His assumption of the mayorship in the event of vacancy is more a matter
of chance than of design. Hence, his service in that office should not be counted in
the application of any term limit.
To recapitulate, the term limit for elective local officials must be taken to refer to the
right to be elected as well as the right to serve in the same elective position.
Consequently, it is not enough that an individual has served three consecutive terms
in an elective local office, he must also have been elected to the same position for the
same number of times before the disqualification can apply. This point can be made
clearer by considering the following cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of
the incumbent. Six months before the next election, he resigns and is twice elected
thereafter. Can he run again for mayor in the next election?
Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually
served three full terms in all for the purpose of applying the term limit. Under Art. X,
8, voluntary renunciation of the office is not considered as an interruption in the
continuity of his service for the full term only if the term is one "for which he was
elected." Since A is only completing the service of the term for which the deceased
and not he was elected, A cannot be considered to have completed one term. His
resignation constitutes an interruption of the full term.
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after that, can
he run for one more term in the next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two conditions
for the application of the disqualification provisions have not concurred, namely, that
the local official concerned has been elected three consecutive times and that he has
fully served three consecutive terms. In the first case, even if the local official is
considered to have served three full terms notwithstanding his resignation before the
end of the first term, the fact remains that he has not been elected three times. In
the second case, the local official has been elected three consecutive times, but he
has not fully served three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a
total failure of the two conditions to concur for the purpose of applying Art. X, 8.

Suppose he is twice elected after that term, is he qualified to run again in the next
election?
Yes, because he was not elected to the office of mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he served the full term
because he only continued the service, interrupted by the death, of the deceased
mayor.
To consider C in the third case to have served the first term in full and therefore
ineligible to run a third time for reelection would be not only to falsify reality but also
to unduly restrict the right of the people to choose whom they wish to govern them. If
the vice-mayor turns out to be a bad mayor, the people can remedy the situation by
simply not reelecting him for another term. But if, on the other hand, he proves to be
a good mayor, there will be no way the people can return him to office (even if it is
just the third time he is standing for reelection) if his service of the first term is
counted as one for the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the understanding of
the Constitutional Commission that while the people should be protected from the
evils that a monopoly of political power may bring about, care should be taken that
their freedom of choice is not unduly curtailed.
WHEREFORE, the petition is DISMISSED.

SOCRATES V. COMELEC (2002) | CARPIO, J.:

The Case

On September 23, 2002, the COMELEC en banc promulgated a resolution denying the
motion for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution
declaring Hagedorn qualified to run in the recall election.

Before us are consolidated petitions for certiorari1 seeking the reversal of the
resolutions issued by the Commission on Elections ("COMELEC" for brevity) in relation
to the recall election for mayor of Puerto Princesa City, Palawan.

Hence, the instant consolidated petitions.

The Antecedents

Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14,
2002 in E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and
scheduled the recall election on September 7, 2002.

On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of
the Puerto Princesa convened themselves into a Preparatory Recall Assembly ("PRA"
for brevity) at the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon.
The PRA was convened to initiate the recall2 of Victorino Dennis M. Socrates
("Socrates" for brevity) who assumed office as Puerto Princesa's mayor on June 30,
2001. The members of the PRA designated Mark David M. Hagedorn, president of the
Association of Barangay Captains, as interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for
brevity) which declared its loss of confidence in Socrates and called for his recall. The
PRA requested the COMELEC to schedule the recall election for mayor within 30 days
from receipt of the Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No.
02-010 (RC), to nullify and deny due course to the Recall Resolution.
On August 14, 2002, the COMELEC en banc3 promulgated a resolution dismissing for
lack of merit Socrates' petition. The COMELEC gave due course to the Recall
Resolution and scheduled the recall election on September 7, 2002.
On August 21,
prescribing the
connection with
August 27, 2002

2002, the COMELEC en banc promulgated Resolution No. 5673

calendar of activities and periods of certain prohibited acts in
the recall election. The COMELEC fixed the campaign period from
to September 5, 2002 or a period of 10 days.

On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate
of candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo
("Gilo" for brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492,
to disqualify Hagedorn from running in the recall election and to cancel his certificate
of candidacy. On August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for
brevity) filed a petition-in-intervention in SPA No. 02-492 also seeking to disqualify
Hagedorn. On the same date, a certain Genaro V. Manaay filed another petition,
docketed as SPA No. 02-539, against Hagedorn alleging substantially the same facts
and involving the same issues. The petitions were all anchored on the ground that
"Hagedorn is disqualified from running for a fourth consecutive term, having been
elected and having served as mayor of the city for three (3) consecutive full terms
immediately prior to the instant recall election for the same post." Subsequently, SPA
Nos. 02-492 and 02-539 were consolidated.
In a resolution promulgated on September 20, 2002, the COMELEC's First Division4
dismissed for lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared
Hagedorn qualified to run in the recall election. The COMELEC also reset the recall
election from September 7, 2002 to September 24, 2002.

G.R. No. 154512

Socrates alleges that the COMELEC gravely abused its discretion in upholding the
Recall Resolution. Socrates cites the following circumstances as legal infirmities
attending the convening of the PRA and its issuance of the Recall Resolution: (1) not
all members of the PRA were notified of the meeting to adopt the resolution; (2) the
proof of service of notice was palpably and legally deficient; (3) the members of the
PRA were themselves seeking a new electoral mandate from their respective
constituents; (4) the adoption of the resolution was exercised with grave abuse of
authority; and (5) the PRA proceedings were conducted in a manner that violated his
and the public's constitutional right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated
August 21, 2002 insofar as it fixed the recall election on September 7, 2002, giving
the candidates only a ten-day campaign period. He prayed that the COMELEC be
enjoined from holding the recall election on September 7, 2002 and that a new date
be fixed giving the candidates at least an additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC
from implementing Resolution No. 5673 insofar as it fixed the date of the recall
election on September 7, 2002. The Court directed the COMELEC to give the
candidates an additional fifteen 15 days from September 7, 2002 within which to
campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708
giving the candidates an additional 15 days from September 7, 2002 within which to
campaign. Thus, the COMELEC reset the recall election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September
20, 2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn
qualified to run for mayor in the recall election. They likewise prayed for the issuance
of a temporary restraining order to enjoin the proclamation of the winning candidate
in the recall election.
Petitioners argue that the COMELEC gravely abused its discretion in upholding
Hagedorn's qualification to run for mayor in the recall election despite the
constitutional and statutory prohibitions against a fourth consecutive term for elective
local officials.
In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist
from proclaiming any winning candidate in the recall election until further orders from
the Court. Petitioners were required to post a P20,000 bond.

On September 27, 2002, Socrates filed a motion for leave to file an attached petition
for intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in the recall
election with 20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220
votes and 13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the
winning candidate and to allow him to assume office to give effect to the will of the
electorate.
On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for
intervention.
The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in
giving due course to the Recall Resolution and scheduling the recall election for mayor
of Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall
election of Puerto Princesa on September 24, 2002.
In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of
discretion in fixing a campaign period of only 10 days has become moot. Our
Resolution of September 3, 2002 and COMELEC Resolution No. 5708 granted an
additional 15 days for the campaign period as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in
upholding the Recall Resolution despite the absence of notice to 130 PRA members
and the defective service of notice to other PRA members. The COMELEC, however,
found that
"On various dates, in the month of June 2002, the proponents for the Recall of
incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening of
the PRA to the members thereof pursuant to Section 70 of the Local Government
Code. Copies of the said notice are in Volumes I and II entitled Notices to PRA.
Likewise, Proof of Service for each of the said notices were attached to the Petition
and marked as Annex "G" of Volumes II and III of the Petition.
Notices were likewise posted in conspicuous places particularly at the Barangay Hall.
Photos establishing the same were attached to the Petition and marked as Annex "H".
The proponents likewise utilized the broadcast mass media in the dissemination of the
convening of the PRA.
Notices of the convening of the Puerto Princesa PRA were also sent to the following:
[a list of 25 names of provincial elective officials, print and broadcast media
practitioners, PNP officials, COMELEC city, regional and national officials, and DILG
officials].
xxx
The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002
certified that upon a 'thorough and careful verification of the signatures appearing in

PRA Resolution 01-02, x x x the majority of all members of the PRA concerned
approved said resolution.' She likewise certified 'that not a single member/signatory of
the PRA complained or objected as to the veracity and authenticity of their
signatures.'
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his
Indorsement dated 10 July 2002, stated, 'upon proper review, all documents
submitted are found in order.'
The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the
following recommendations:
'This Office, after evaluating the documents filed, finds the instant Petition sufficient in
form and substance. That the PRA was validly constituted and that the majority of all
members thereof approved Resolution No. 01-02 calling for the recall of Mayor
Victorino Dennis M. Socrates.'
x x x ."
This Court is bound by the findings of fact of the COMELEC on matters within the
competence and expertise of the COMELEC, unless the findings are patently
erroneous. In Malonzo v. COMELEC,5 which also dealt with alleged defective service
of notice to PRA members, we ruled that
"Needless to state, the issue of propriety of the notices sent to the PRA members is
factual in nature, and the determination of the same is therefore a function of the
COMELEC. In the absence of patent error, or serious inconsistencies in the findings,
the Court should not disturb the same. The factual findings of the COMELEC, based on
its own assessments and duly supported by gathered evidence, are conclusive upon
the court, more so, in the absence of a substantiated attack on the validity of the
same."
In the instant case, we do not find any valid reason to hold that the COMELEC's
findings of fact are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt the Recall
Resolution on July 2, 2002 because a majority of PRA members were seeking a new
electoral mandate in the barangay elections scheduled on July 15, 2002. This
argument deserves scant consideration considering that when the PRA members
adopted the Recall Resolution their terms of office had not yet expired. They were all
de jure sangguniang barangay members with no legal disqualification to participate in
the recall assembly under Section 70 of the Local Government Code.
Socrates bewails that the manner private respondents conducted the PRA proceedings
violated his constitutional right to information on matters of public concern. Socrates,
however, admits receiving notice of the PRA meeting and of even sending his
representative and counsel who were present during the entire PRA proceedings.
Proponents of the recall election submitted to the COMELEC the Recall Resolution,
minutes of the PRA proceedings, the journal of the PRA assembly, attendance sheets,
notices sent to PRA members, and authenticated master list of barangay officials in
Puerto Princesa. Socrates had the right to examine and copy all these public records
in the official custody of the COMELEC. Socrates, however, does not claim that the
COMELEC denied him this right. There is no legal basis in Socrates' claim that
respondents violated his constitutional right to information on matters of public
concern.

Thus, we rule that the COMELEC did not commit grave abuse of discretion in
upholding the validity of the Recall Resolution and in scheduling the recall election on
September 24, 2002.

"MANIFESTATION OF MR. ROMULO

in the recall election of September 24, 2002.

Upon resumption of session, Mr. Romulo manifested that the Body would proceed to
the consideration of two issues on the term of Representatives and local officials,
namely: 1) Alternative No. 1 (no further reelection after a total of three terms), and 2)
Alternative No. 2 (no immediate reelection after three successive terms)."8

The three-term limit rule for elective local officials is found in Section 8, Article X of
the Constitution, which states:

The framers of the Constitution used the same "no immediate reelection" question in
voting for the term limits of Senators9 and Representatives of the House.10

"Section 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected."

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term
following three consecutive terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the reelection is not immediately
after the end of the third consecutive term. A recall election mid-way in the term
following the third consecutive term is a subsequent election but not an immediate
reelection after the third term.

Second Issue: Hagedorn's qualification to run for mayor

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise
known as the Local Government Code, which provides:
"Section 43. Term of Office. (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in
the same position. Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of service for the full term for which
the elective official was elected."
These constitutional and statutory provisions have two parts. The first part provides
that an elective local official cannot serve for more than three consecutive terms. The
clear intent is that only consecutive terms count in determining the three-term limit
rule. The second part states that voluntary renunciation of office for any length of
time does not interrupt the continuity of service. The clear intent is that involuntary
severance from office for any length of time interrupts continuity of service and
prevents the service before and after the interruption from being joined together to
form a continuous service or consecutive terms.
After three consecutive terms, an elective local official cannot seek immediate
reelection for a fourth term. The prohibited election refers to the next regular election
for the same office following the end of the third consecutive term. Any subsequent
election, like a recall election, is no longer covered by the prohibition for two reasons.
First, a subsequent election like a recall election is no longer an immediate reelection
after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local
officials, the question asked was whether there would be no further election after
three terms, or whether there would be "no immediate reelection" after three terms.
This is clear from the following deliberations of the Constitutional Commission:
"THE PRESIDENT: The Acting Floor Leader is recognized.
MR. ROMULO:6 We are now ready to discuss the two issues, as indicated on the
blackboard, and these are Alternative No. I where there is no further election after a
total of three terms and Alternative No. 2 where there is no immediate reelection after
three successive terms."7
The Journal of the Constitutional Commission reports the following manifestation on
the term of elective local officials:

Neither does the Constitution prohibit one barred from seeking immediate reelection
to run in any other subsequent election involving the same term of office. What the
Constitution prohibits is a consecutive fourth term. The debates in the Constitutional
Commission evidently show that the prohibited election referred to by the framers of
the Constitution is the immediate reelection after the third term, not any other
subsequent election.
If the prohibition on elective local officials is applied to any election within the threeyear full term following the three-term limit, then Senators should also be prohibited
from running in any election within the six-year full term following their two-term
limit. The constitutional provision on the term limit of Senators is worded exactly like
the term limit of elective local officials, thus:
"No Senator shall serve for more than two consecutive terms. Voluntary renunciation
of the office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected."11
In the debates on the term limit of Senators, the following exchange in the
Constitutional Convention is instructive:
"GASCON:12 I would like to ask a question with regard to the issue after the second
term. We will allow the Senator to rest for a period of time before he can run again?
DAVIDE:13 That is correct.
GASCON: And the question that we left behind before - if the Gentleman will
remember - was: How long will that period of rest be? Will it be one election which is
three years or one term which is six years?
DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view
that during the election following the expiration of the first 12 years, whether such
election will be on the third or on the sixth year thereafter, this particular member of
the Senate can run. So, it is not really a period of hibernation for six years. That was
the Committee's stand.
GASCON: So, effectively, the period of rest would be three years at the least."14
(Emphasis supplied)
The framers of the Constitution thus clarified that a Senator can run after only three
years15 following his completion of two terms. The framers expressly acknowledged

that the prohibited election refers only to the immediate reelection, and not to any
subsequent election, during the six-year period following the two term limit. The
framers of the Constitution did not intend "the period of rest" of an elective official
who has reached his term limit to be the full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is
not an immediate reelection after his third consecutive term which ended on June 30,
2001. The immediate reelection that the Constitution barred Hagedorn from seeking
referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001
elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998
elections and served in full his three consecutive terms as mayor of Puerto Princesa.
Under the Constitution and the Local Government Code, Hagedorn could no longer
run for mayor in the 2001 elections. The Constitution and the Local Government Code
disqualified Hagedorn, who had reached the maximum three-term limit, from running
for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the
2001 elections.16 Socrates ran and won as mayor of Puerto Princesa in the 2001
elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a private
citizen until the recall election of September 24, 2002 when he won by 3,018 votes
over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of
Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private
citizen. This period is clearly an interruption in the continuity of Hagedorn's service as
mayor, not because of his voluntary renunciation, but because of a legal prohibition.
Hagedorn's three consecutive terms ended on June 30, 2001. Hagedorn's new recall
term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his
previous three consecutive terms as mayor. One cannot stitch together Hagedorn's
previous three-terms with his new recall term to make the recall term a fourth
consecutive term because factually it is not. An involuntary interruption occurred from
June 30, 2001 to September 24, 2002 which broke the continuity or consecutive
character of Hagedorn's service as mayor.
In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of
continuity of service in this manner:
"x x x The second sentence of the constitutional provision under scrutiny states,
"Voluntary renunciation of office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which he was elected."
The clear intent of the framers of the constitution to bar any attempt to circumvent
the three-term limit by a voluntary renunciation of office and at the same time respect
the people's choice and grant their elected official full service of a term is evident in
this provision. Voluntary renunciation of a term does not cancel the renounced term in
the computation of the three-term limit; conversely, involuntary severance from office
for any length of time short of the full term provided by law amounts to an
interruption of continuity of service. x x x." (Emphasis supplied)
In Hagedorn's case, the nearly 15-month period he was out of office, although short
of a full term of three years, constituted an interruption in the continuity of his service
as mayor. The Constitution does not require the interruption or hiatus to be a full
term of three years. The clear intent is that interruption "for any length of time," as
long as the cause is involuntary, is sufficient to break an elective local official's
continuity of service.
In the recent case of Adormeo v. Comelec and Talaga,18 a unanimous Court
reiterated the rule that an interruption consisting of a portion of a term of office
breaks the continuity of service of an elective local official. In Adormeo, Ramon Y.

Talaga, Jr. had served two consecutive full terms as mayor of Lucena City. In his third
bid for election as mayor in 1998, Talaga lost to Bernard G. Tagarao. However, in the
recall election of May 12, 2000, Talaga won and served the unexpired term of
Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in
the 2001 elections, Raymundo Adormeo, the other candidate for mayor, petitioned for
Talaga's disqualification on the ground that Talaga had already served three
consecutive terms as mayor.
Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of
his previous two terms so that he was deemed to have already served three
consecutive terms as mayor. The Court ruled that Talaga was qualified to run in the
2001 elections, stating that the period from June 30, 1998 to May 12, 2000 when
Talaga was out of office interrupted the continuity of his service as mayor. Talaga's
recall term as mayor was not consecutive to his previous two terms because of this
interruption, there having been a break of almost two years during which time
Tagarao was the mayor.
We held in Adormeo that the period an elective local official is out of office interrupts
the continuity of his service and prevents his recall term from being stitched together
as a seamless continuation of his previous two consecutive terms. In the instant case,
we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his
continuity of service and prevents his recall term from being stitched together as a
seamless continuation of his previous three consecutive terms. The only difference
between Adormeo and the instant case is the time of the interruption. In Adormeo,
the interruption occurred after the first two consecutive terms. In the instant case, the
interruption happened after the first three consecutive terms. In both cases, the
respondents were seeking election for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he assumed office
after winning the recall election. Talaga's recall term did not retroact to include the
tenure in office of his predecessor. If Talaga's recall term was made to so retroact,
then he would have been disqualified to run in the 2001 elections because he would
already have served three consecutive terms prior to the 2001 elections. One who
wins and serves a recall term does not serve the full term of his predecessor but only
the unexpired term. The period of time prior to the recall term, when another elective
official holds office, constitutes an interruption in continuity of service. Clearly,
Adormeo established the rule that the winner in the recall election cannot be charged
or credited with the full term of three years for purposes of counting the
consecutiveness of an elective official's terms in office.
In the same manner, Hagedorn's recall term does not retroact to include the tenure in
office of Socrates. Hagedorn can only be disqualified to run in the September 24,
2002 recall election if the recall term is made to retroact to June 30, 2001, for only
then can the recall term constitute a fourth consecutive term. But to consider
Hagedorn's recall term as a full term of three years, retroacting to June 30, 2001,
despite the fact that he won his recall term only last September 24, 2002, is to ignore
reality. This Court cannot declare as consecutive or successive terms of office which
historically and factually are not.
Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal
fiction that unduly curtails the freedom of the people to choose their leaders through
popular elections. The concept of term limits is in derogation of the sovereign will of
the people to elect the leaders of their own choosing. Term limits must be construed
strictly to give the fullest possible effect to the sovereign will of the people. As this
Court aptly stated in Borja, Jr. v. Comelec:
"Thus, a consideration of the historical background of Art. X, 8 of the Constitution
reveals that the members of the Constitutional Commission were as much concerned

with preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine
years there should be no further reelection for local and legislative officials. Instead,
they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding
election following the expiration of the third consecutive term. Monsod warned against
'prescreening candidates [from] whom the people will choose' as a result of the
proposed absolute disqualification, considering that the draft constitution contained
provisions 'recognizing people's power.'"19 (Emphasis supplied)
A necessary consequence of the interruption of continuity of service is the start of a
new term following the interruption. An official elected in recall election serves the
unexpired term of the recalled official. This unexpired term is in itself one term for
purposes of counting the three-term limit. This is clear from the following discussion
in the Constitutional Commission:
"SUAREZ:20 For example, a special election is called for a Senator, and the Senator
newly elected would have to serve the unexpired portion of the term. Would that
mean that serving the unexpired portion of the term is already considered one term?
So, half a term, which is actually the correct statement, plus one term would
disqualify the Senator concerned from running? Is that the meaning of this provision
on disqualification, Madam President?
DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will
serve only for the unexpired portion of that particular term plus one more term for the
Senator and two more terms for the Members of the Lower House."21
Although the discussion referred to special elections for Senators and Representatives
of the House, the same principle applies to a recall election of local officials.
Otherwise, an elective local official who serves a recall term can serve for more than
nine consecutive years comprising of the recall term plus the regular three full terms.
A local official who serves a recall term should know that the recall term is in itself
one term although less than three years. This is the inherent limitation he takes by
running and winning in the recall election.
In summary, we hold that Hagedorn is qualified to run in the September 24, 2002
recall election for mayor of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following his three consecutive
terms as mayor which ended on June 30, 2001;
2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June
30, 2001 to September 24, 2002 during which time he was a private citizen;
3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made
to retroact to June 30, 2001 to make a fourth consecutive term because factually the
recall term is not a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest possible effect to the
right of the electorate to choose their leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are
DISMISSED. The temporary restraining order issued by this Court on September 24,
2002 enjoining the proclamation of the winning candidate for mayor of Puerto
Princesa in the recall election of September 24, 2002 is lifted. No costs.

MONTEBON V. COMELEC (2008) | YNARES-SANTIAGO, J.

This petition1 for certiorari assails the June 2, 2007 Resolution2 of the First Division of
the Commission on Elections (COMELEC) in SPA No. 07-421, denying the petition for
disqualification filed by petitioners Federico T. Montebon and Eleanor M. Ondoy
against respondent Sesinando F. Potencioso, Jr., as well as the September 28, 2007
Resolution3 of the COMELEC En Banc denying the motion for reconsideration.
Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for
municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007
Synchronized National and Local Elections. On April 30, 2007, petitioners and other
candidates4 for municipal councilor filed a petition for disqualification against
respondent with the COMELEC alleging that respondent had been elected and served
three consecutive terms as municipal councilor in 1998-2001, 2001-2004, and 20042007. Thus, he is proscribed from running for the same position in the 2007 elections
as it would be his fourth consecutive term.
In his answer, respondent admitted that he had been elected for three consecutive
terms as municipal councilor. However, he claimed that the service of his second term
in 2001-2004 was interrupted on January 12, 2004 when he succeeded as vice mayor
of Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently,
he is not disqualified from vying for the position of municipal councilor in the 2007
elections.
In the hearing of May 10, 2007, the parties were directed to file their respective
memoranda.
In petitioners memorandum, they maintained that respondents assumption of office
as vice-mayor in January 2004 should not be considered an interruption in the service
of his second term since it was a voluntary renunciation of his office as municipal
councilor. They argued that, according to the law, voluntary renunciation of the office
for any length of time shall not be considered an interruption in the continuity of
service for the full term for which the official concerned was elected.
On the other hand, respondent alleged that a local elective official is not disqualified
from running for the fourth consecutive time to the same office if there was an
interruption in one of the previous three terms.
On June 2, 2007, the COMELEC First Division denied the petition for disqualification
ruling that respondents assumption of office as vice-mayor should be considered an
interruption in the continuity of his service. His second term having been involuntarily
interrupted, respondent should thus not be disqualified to seek reelection as municipal
councilor.5
On appeal, the COMELEC En Banc upheld the ruling of the First Division, as follows:
Respondents assumption to the office of the vice-mayor of Tuburan in January 2004
during his second term as councilor is not a voluntary renunciation of the latter office.
The same therefore operated as an effective disruption in the full service of his
second term as councilor. Thus, in running for councilor again in the May 14, 2007
Elections, respondent is deemed to be running only for a second consecutive term as
councilor of Tuburan, the first consecutive term fully served being his 2004-2007
term.
Petitioner Montebons and Ondoys June 9, 2007 manifestation and omnibus motion
are hereby declared moot and academic with the instant disposition of their motion
for reconsideration.

WHEREFORE, premises considered, petitioners motion for reconsideration is hereby

DENIED for lack of merit.
SO ORDERED.6
Petitioners filed the instant petition for certiorari on the ground that the COMELEC
committed grave abuse of discretion amounting to lack or excess of jurisdiction in
ruling that respondents assumption of office as vice-mayor in January 2004
interrupted his 2001-2004 term as municipal councilor.
The petition lacks merit.
The 1987 Constitution bars and disqualifies local elective officials from serving more
than three consecutive terms in the same post. Section 8, Article X thereof states:
Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law shall be three years and no such officials shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.
Section 43 of the Local Government Code also provides:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which
the elective official concerned was elected.
In Lonzanida v. Commission on Elections,7 the Court held that the two conditions for
the application of the disqualification must concur: 1) that the official concerned has
been elected for three consecutive terms in the same local government post; and 2)
that he has fully served three consecutive terms.8 In Borja, Jr. v. Commission on
Elections,9 the Court emphasized that the term limit for elective officials must be
taken to refer to the right to be elected as well as the right to serve in the same
elective position. Thus, for the disqualification to apply, it is not enough that the
official has been elected three consecutive times; he must also have served three
consecutive terms in the same position.10
While it is undisputed that respondent was elected municipal councilor for three
consecutive terms, the issue lies on whether he is deemed to have fully served his
second term in view of his assumption of office as vice-mayor of Tuburan on January
12, 2004.
Succession in local government offices is by operation of law.11 Section 4412 of
Republic Act No. 7160, otherwise known as the Local Government Code, provides that
if a permanent vacancy occurs in the office of the vice mayor, the highest ranking
sanggunian member shall become vice mayor. Thus:
SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor,
and Vice Mayor. (a) If a permanent vacancy occurs in the office of the governor or
mayor, the vice governor or vice mayor concerned shall become the governor or
mayor. If a permanent vacancy occurs in the offices of the governor, vice governor,
mayor or vice mayor, the highest ranking sanggunian member or, in case of his
permanent inability, the second highest ranking sanggunian member, shall become
the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent

vacancies in the said office shall be filled automatically by the other sanggunian
members according to their ranking as defined herein. x x x
In this case, a permanent vacancy occurred in the office of the vice mayor due to the
retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal
councilor, succeeded him in accordance with law. It is clear therefore that his
assumption of office as vice-mayor can in no way be considered a voluntary
renunciation of his office as municipal councilor.
In Lonzanida v. Commission on Elections, the Court explained the concept of
voluntary renunciation as follows:
The second sentence of the constitutional provision under scrutiny states, Voluntary
renunciation of office for any length of time shall not be considered as an interruption
in the continuity of service for the full term for which he was elected. The clear intent
of the framers of the constitution to bar any attempt to circumvent the three-term
limit by a voluntary renunciation of office and at the same time respect the peoples
choice and grant their elected official full service of a term is evident in this provision.
Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three term limit; conversely, involuntary severance from office for
any length of time short of the full term provided by law amounts to an interruption of
continuity of service.13 (Emphasis added)
Thus, respondents assumption of office as vice-mayor in January 2004 was an
involuntary severance from his office as municipal councilor, resulting in an
interruption in the service of his 2001-2004 term. It cannot be deemed to have been
by reason of voluntary renunciation because it was by operation of law. We quote
with approval the ruling of the COMELEC that
The legal successor is not given any option under the law on whether to accept the
vacated post or not. Section 44 of the Local Government Code makes no exception.
Only if the highest-ranking councilor is permanently unable to succeed to the post
does the law speak of alternate succession. Under no circumstances can simple
refusal of the official concerned be considered as permanent inability within the
contemplation of law. Essentially therefore, the successor cannot refuse to assume
the office that he is mandated to occupy by virtue of succession. He can only do so if
for some reason he is permanently unable to succeed and occupy the post vacated.
xxxx
Thus, succession by law to a vacated government office is characteristically not
voluntary since it involves the performance of a public duty by a government official,
the non-performance of which exposes said official to possible administrative and
criminal charges of dereliction of duty and neglect in the performance of public
functions. It is therefore more compulsory and obligatory rather than voluntary.14
WHEREFORE, the petition is DISMISSED for lack of merit. The June 2, 2007
Resolution of the COMELEC First Division denying the petition for disqualification and
the September 28, 2007 Resolution of the COMELEC en banc denying the motion for
reconsideration, are AFFIRMED.

ALDOVINO V. COMELEC (2009) | BRION, J.

Is the preventive suspension of an elected public official an interruption of his term of
office for purposes of the three-term limit rule under Section 8, Article X of the
Constitution and Section 43(b) of Republic Act No. 7160 (RA 7160, or the Local
Government Code)?
The respondent Commission on Elections (COMELEC) ruled that preventive suspension
is an effective interruption because it renders the suspended public official unable to
provide complete service for the full term; thus, such term should not be counted for
the purpose of the three-term limit rule.
The present petition1 seeks to annul and set aside this COMELEC ruling for having
been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
THE ANTECEDENTS

interruption in the term of an elective public official, has been mentioned as an

example in Borja v. Commission on Elections.2 Doctrinally, however, Borja is not a
controlling ruling; it did not deal with preventive suspension, but with the application
of the three-term rule on the term that an elective official acquired by succession.
a. The Three-term Limit Rule:
The Constitutional Provision Analyzed
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.

The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three
consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively.
In September 2005 or during his 2004-2007 term of office, the Sandiganbayan
preventively suspended him for 90 days in relation with a criminal case he then faced.
This Court, however, subsequently lifted the Sandiganbayans suspension order;
hence, he resumed performing the functions of his office and finished his term.

Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any
difference in wording does not assume any significance in this case.

In the 2007 election, Asilo filed his certificate of candidacy for the same position. The
petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the
petitioners) sought to deny due course to Asilos certificate of candidacy or to cancel it
on the ground that he had been elected and had served for three terms; his
candidacy for a fourth term therefore violated the three-term limit rule under Section
8, Article X of the Constitution and Section 43(b) of RA 7160.

Significantly, this provision refers to a "term" as a period of time three years

during which an official has title to office and can serve. Appari v. Court of Appeals,3
a Resolution promulgated on November 28, 2007, succinctly discusses what a "term"
connotes, as follows:

The COMELECs Second Division ruled against the petitioners and in Asilos favour in
its Resolution of November 28, 2007. It reasoned out that the three-term limit rule did
not apply, as Asilo failed to render complete service for the 2004-2007 term because
of the suspension the Sandiganbayan had ordered.
The COMELEC en banc refused to reconsider the Second Divisions ruling in its
October 7, 2008 Resolution; hence, the PRESENT PETITION raising the following
ISSUES:
1. Whether preventive suspension of an elected local official is an interruption of the
three-term limit rule; and
2. Whether preventive suspension is considered involuntary renunciation as
contemplated in Section 43(b) of RA 7160
Thus presented, the case raises the direct issue of whether Asilos preventive
suspension constituted an interruption that allowed him to run for a 4th term.
THE COURTS RULING
We find the petition meritorious.
General Considerations
The present case is not the first before this Court on the three-term limit provision of
the Constitution, but is the first on the effect of preventive suspension on the
continuity of an elective officials term. To be sure, preventive suspension, as an

As worded, the constitutional provision fixes the term of a local elective office and
limits an elective officials stay in office to no more than three consecutive terms. This
is the first branch of the rule embodied in Section 8, Article X.

The word "term" in a legal sense means a fixed and definite period of time which the
law describes that an officer may hold an office. According to Mechem, the term of
office is the period during which an office may be held. Upon expiration of the officers
term, unless he is authorized by law to holdover, his rights, duties and authority as a
public officer must ipso facto cease. In the law of public officers, the most and natural
frequent method by which a public officer ceases to be such is by the expiration of the
terms for which he was elected or appointed. [Emphasis supplied].1avvphi1
A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he term means
the time during which the officer may claim to hold office as of right, and fixes the
interval after which the several incumbents shall succeed one another."
The "limitation" under this first branch of the provision is expressed in the negative
"no such official shall serve for more than three consecutive terms." This formulation
no more than three consecutive terms is a clear command suggesting the
existence of an inflexible rule. While it gives no exact indication of what to "serve. . .
three consecutive terms" exactly connotes, the meaning is clear reference is to the
term, not to the service that a public official may render.1awphi1 In other words, the
limitation refers to the term.
The second branch relates to the provisions express initiative to prevent any
circumvention of the limitation through voluntary severance of ties with the public
office; it expressly states that voluntary renunciation of office "shall not be considered
as an interruption in the continuity of his service for the full term for which he was
elected." This declaration complements the term limitation mandated by the first
branch.
A notable feature of the second branch is that it does not textually state that
voluntary renunciation is the only actual interruption of service that does not affect

"continuity of service for a full term" for purposes of the three-term limit rule. It is a
pure declaratory statement of what does not serve as an interruption of service for a
full term, but the phrase "voluntary renunciation," by itself, is not without significance
in determining constitutional intent.
The word "renunciation" carries the dictionary meaning of abandonment. To renounce
is to give up, abandon, decline, or resign.5 It is an act that emanates from its author,
as contrasted to an act that operates from the outside. Read with the definition of a
"term" in mind, renunciation, as mentioned under the second branch of the
constitutional provision, cannot but mean an act that results in cutting short the term,
i.e., the loss of title to office. The descriptive word "voluntary" linked together with
"renunciation" signifies an act of surrender based on the surenderees own freely
exercised will; in other words, a loss of title to office by conscious choice. In the
context of the three-term limit rule, such loss of title is not considered an interruption
because it is presumed to be purposely sought to avoid the application of the term
limitation.
The following exchanges in the deliberations of the Constitutional Commission on the
term "voluntary renunciation" shed further light on the extent of the term "voluntary
renunciation":
MR. MAAMBONG. Could I address the clarificatory question to the Committee? This
term "voluntary renunciation" does not appear in Section 3 [of Article VI]; it also
appears in Section 6 [of Article VI].
MR DAVIDE. Yes.
MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the
Committee please enlighten us exactly what "voluntary renunciation" mean? Is this
akin to abandonment?
MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the
restriction by merely resigning at any given time on the second term.
MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is
more general than abandonment and resignation?
MR. DAVIDE. It is more general, more embracing.6
From this exchange and Commissioner Davides expansive interpretation of the term
"voluntary renunciation," the framers intent apparently was to close all gaps that an
elective official may seize to defeat the three-term limit rule, in the way that voluntary
renunciation has been rendered unavailable as a mode of defeating the three-term
limit rule. Harking back to the text of the constitutional provision, we note further that
Commissioner Davides view is consistent with the negative formulation of the first
branch of the provision and the inflexible interpretation that it suggests.
This examination of the wording of the constitutional provision and of the
circumstances surrounding its formulation impresses upon us the clear intent to make
term limitation a high priority constitutional objective whose terms must be strictly
construed and which cannot be defeated by, nor sacrificed for, values of less than
equal constitutional worth. We view preventive suspension vis--vis term limitation
with this firm mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule

Other than the above-cited materials, jurisprudence best gives us a lead into the
concepts within the provisions contemplation, particularly on the "interruption in the
continuity of service for the full term" that it speaks of.
Lonzanida v. Commission on Elections7 presented the question of whether the
disqualification on the basis of the three-term limit applies if the election of the public
official (to be strictly accurate, the proclamation as winner of the public official) for his
supposedly third term had been declared invalid in a final and executory judgment.
We ruled that the two requisites for the application of the disqualification (viz., 1. that
the official concerned has been elected for three consecutive terms in the same local
government post; and 2. that he has fully served three consecutive terms) were not
present. In so ruling, we said:
The clear intent of the framers of the constitution to bar any attempt to circumvent
the three-term limit by a voluntary renunciation of office and at the same time respect
the peoples choice and grant their elected official full service of a term is evident in
this provision. Voluntary renunciation of a term does not cancel the renounced term in
the computation of the three term limit; conversely, involuntary severance from office
for any length of time short of the full term provided by law amounts to an
interruption of continuity of service. The petitioner vacated his post a few months
before the next mayoral elections, not by voluntary renunciation but in compliance
with the legal process of writ of execution issued by the COMELEC to that effect. Such
involuntary severance from office is an interruption of continuity of service and thus,
the petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied]
Our intended meaning under this ruling is clear: it is severance from office, or to be
exact, loss of title, that renders the three-term limit rule inapplicable.
Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of
whether there had been a completed term for purposes of the three-term limit
disqualification. These cases, however, presented an interesting twist, as their final
judgments in the electoral contest came after the term of the contested office had
expired so that the elective officials in these cases were never effectively unseated.
Despite the ruling that Ong was never entitled to the office (and thus was never
validly elected), the Court concluded that there was nevertheless an election and
service for a full term in contemplation of the three-term rule based on the following
premises: (1) the final decision that the third-termer lost the election was without
practical and legal use and value, having been promulgated after the term of the
contested office had expired; and (2) the official assumed and continuously exercised
the functions of the office from the start to the end of the term. The Court noted in
Ong the absurdity and the deleterious effect of a contrary view that the official
(referring to the winner in the election protest) would, under the three-term rule, be
considered to have served a term by virtue of a veritably meaningless electoral
protest ruling, when another actually served the term pursuant to a proclamation
made in due course after an election. This factual variation led the Court to rule
differently from Lonzanida.
In the same vein, the Court in Rivera rejected the theory that the official who finally
lost the election contest was merely a "caretaker of the office" or a mere "de facto
officer." The Court obeserved that Section 8, Article X of the Constitution is violated
and its purpose defeated when an official fully served in the same position for three
consecutive terms. Whether as "caretaker" or "de facto" officer, he exercised the
powers and enjoyed the perquisites of the office that enabled him "to stay on
indefinitely."
Ong and Rivera are important rulings for purposes of the three-term limitation
because of what they directly imply. Although the election requisite was not actually

present, the Court still gave full effect to the three-term limitation because of the
constitutional intent to strictly limit elective officials to service for three terms. By so
ruling, the Court signalled how zealously it guards the three-term limit rule.
Effectively, these cases teach us to strictly interpret the term limitation rule in favor of
limitation rather than its exception.
Adormeo v. Commission on Elections10 dealt with the effect of recall on the threeterm limit disqualification. The case presented the question of whether the
disqualification applies if the official lost in the regular election for the supposed third
term, but was elected in a recall election covering that term. The Court upheld the
COMELECs ruling that the official was not elected for three (3) consecutive terms.
The Court reasoned out that for nearly two years, the official was a private citizen;
hence, the continuity of his mayorship was disrupted by his defeat in the election for
the third term.
Socrates v. Commission on Elections11 also tackled recall vis--vis the three-term limit
disqualification. Edward Hagedorn served three full terms as mayor. As he was
disqualified to run for a fourth term, he did not participate in the election that
immediately followed his third term. In this election, the petitioner Victorino Dennis M.
Socrates was elected mayor. Less than 1 years after Mayor Socrates assumed the
functions of the office, recall proceedings were initiated against him, leading to the
call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the
recall election, but Socrates sought his disqualification on the ground that he
(Hagedorn) had fully served three terms prior to the recall election and was therefore
disqualified to run because of the three-term limit rule. We decided in Hagedorns
favor, ruling that:
After three consecutive terms, an elective local official cannot seek immediate
reelection for a fourth term. The prohibited election refers to the next regular election
for the same office following the end of the third consecutive term. Any subsequent
election, like a recall election, is no longer covered by the prohibition for two reasons.
First, a subsequent election like a recall election is no longer an immediate reelection
after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local
officials, the question asked was whether there would be no further election after
three terms, or whether there would be "no immediate reelection" after three terms.
xxxx
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term
following three consecutive terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the reelection is not immediately
after the end of the third consecutive term. A recall election mid-way in the term
following the third consecutive term is a subsequent election but not an immediate
reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection
to run in any other subsequent election involving the same term of office. What the
Constitution prohibits is a consecutive fourth term.12
Latasa v. Commission on Elections13 presented the novel question of whether a
municipal mayor who had fully served for three consecutive terms could run as city
mayor in light of the intervening conversion of the municipality into a city. During the
third term, the municipality was converted into a city; the cityhood charter provided
that the elective officials of the municipality shall, in a holdover capacity, continue to
exercise their powers and functions until elections were held for the new city officials.

The Court ruled that the conversion of the municipality into a city did not convert the
office of the municipal mayor into a local government post different from the office of
the city mayor the territorial jurisdiction of the city was the same as that of the
municipality; the inhabitants were the same group of voters who elected the
municipal mayor for 3 consecutive terms; and they were the same inhabitants over
whom the municipal mayor held power and authority as their chief executive for nine
years. The Court said:
This Court reiterates that the framers of the Constitution specifically included an
exception to the peoples freedom to choose those who will govern them in order to
avoid the evil of a single person accumulating excessive power over a particular
territorial jurisdiction as a result of a prolonged stay in the same office. To allow
petitioner Latasa to vie for the position of city mayor after having served for three
consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three
consecutive terms as mayor of the City of Digos, petitioner would then be possibly
holding office as chief executive over the same territorial jurisdiction and inhabitants
for a total of eighteen consecutive years. This is the very scenario sought to be
avoided by the Constitution, if not abhorred by it.14
Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates,
that no three-term limit violation results if a rest period or break in the service
between terms or tenure in a given elective post intervened. In Lonzanida, the
petitioner was a private citizen with no title to any elective office for a few months
before the next mayoral elections. Similarly, in Adormeo and Socrates, the private
respondents lived as private citizens for two years and fifteen months, respectively.
Thus, these cases establish that the law contemplates a complete break from office
during which the local elective official steps down and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular local
government unit.
Seemingly differing from these results is the case of Montebon v. Commission on
Elections,15 where the highest-ranking municipal councilor succeeded to the position
of vice-mayor by operation of law. The question posed when he subsequently ran for
councilor was whether his assumption as vice-mayor was an interruption of his term
as councilor that would place him outside the operation of the three-term limit rule.
We ruled that an interruption had intervened so that he could again run as councilor.
This result seemingly deviates from the results in the cases heretofore discussed since
the elective official continued to hold public office and did not become a private citizen
during the interim. The common thread that identifies Montebon with the rest,
however, is that the elective official vacated the office of councilor and assumed the
higher post of vice-mayor by operation of law. Thus, for a time he ceased to be
councilor an interruption that effectively placed him outside the ambit of the threeterm limit rule.
c. Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption" of a term exempting an
elective official from the three-term limit rule is one that involves no less than the
involuntary loss of title to office. The elective official must have involuntarily left his
office for a length of time, however short, for an effective interruption to occur. This
has to be the case if the thrust of Section 8, Article X and its strict intent are to be
faithfully served, i.e., to limit an elective officials continuous stay in office to no more
than three consecutive terms, using "voluntary renunciation" as an example and
standard of what does not constitute an interruption.
Thus, based on this standard, loss of office by operation of law, being involuntary, is
an effective interruption of service within a term, as we held in Montebon. On the

other hand, temporary inability or disqualification to exercise the functions of an

elective post, even if involuntary, should not be considered an effective interruption of
a term because it does not involve the loss of title to office or at least an effective
break from holding office; the office holder, while retaining title, is simply barred from
exercising the functions of his office for a reason provided by law.

as far as a temporary prohibition on the exercise of the functions of the officials

office; the official is reinstated to the exercise of his position as soon as the preventive
suspension is lifted. Thus, while a temporary incapacity in the exercise of power
results, no position is vacated when a public official is preventively suspended. This
was what exactly happened to Asilo.

An interruption occurs when the term is broken because the office holder lost the
right to hold on to his office, and cannot be equated with the failure to render service.
The latter occurs during an office holders term when he retains title to the office but
cannot exercise his functions for reasons established by law. Of course, the term
"failure to serve" cannot be used once the right to office is lost; without the right to
hold office or to serve, then no service can be rendered so that none is really lost.

That the imposition of preventive suspension can be abused is a reality that is true in
the exercise of all powers and prerogative under the Constitution and the laws. The
imposition of preventive suspension, however, is not an unlimited power; there are
limitations built into the laws20 themselves that the courts can enforce when these
limitations are transgressed, particularly when grave abuse of discretion is present. In
light of this well-defined parameters in the imposition of preventive suspension, we
should not view preventive suspension from the extreme situation that it can totally
deprive an elective office holder of the prerogative to serve and is thus an effective
interruption of an election officials term.

To put it differently although at the risk of repetition, Section 8, Article X both by

structure and substance fixes an elective officials term of office and limits his stay in
office to three consecutive terms as an inflexible rule that is stressed, no less, by
citing voluntary renunciation as an example of a circumvention. The provision should
be read in the context of interruption of term, not in the context of interrupting the
full continuity of the exercise of the powers of the elective position. The "voluntary
renunciation" it speaks of refers only to the elective officials voluntary relinquishment
of office and loss of title to this office. It does not speak of the temporary "cessation
of the exercise of power or authority" that may occur for various reasons, with
preventive suspension being only one of them. To quote Latasa v. Comelec:16

Preventive Suspension and the Three-Term Limit Rule

Term limitation and preventive suspension are two vastly different aspects of an
elective officials service in office and they do not overlap. As already mentioned
above, preventive suspension involves protection of the service and of the people
being served, and prevents the office holder from temporarily exercising the power of
his office. Term limitation, on the other hand, is triggered after an elective official has
served his three terms in office without any break. Its companion concept
interruption of a term on the other hand, requires loss of title to office. If preventive
suspension and term limitation or interruption have any commonality at all, this
common point may be with respect to the discontinuity of service that may occur in
both. But even on this point, they merely run parallel to each other and never
intersect; preventive suspension, by its nature, is a temporary incapacity to render
service during an unbroken term; in the context of term limitation, interruption of
service occurs after there has been a break in the term.

a. Nature of Preventive Suspension

b. Preventive Suspension and the Intent of the Three-Term Limit Rule

Preventive suspension whether under the Local Government Code,17 the Anti-Graft
and Corrupt Practices Act,18 or the Ombudsman Act19 is an interim remedial
measure to address the situation of an official who have been charged
administratively or criminally, where the evidence preliminarily indicates the likelihood
of or potential for eventual guilt or liability.

Strict adherence to the intent of the three-term limit rule demands that preventive
suspension should not be considered an interruption that allows an elective officials
stay in office beyond three terms. A preventive suspension cannot simply be a term
interruption because the suspended official continues to stay in office although he is
barred from exercising the functions and prerogatives of the office within the
suspension period. The best indicator of the suspended officials continuity in office is
the absence of a permanent replacement and the lack of the authority to appoint one
since no vacancy exists.

Indeed, [T]he law contemplates a rest period during which the local elective official
steps down from office and ceases to exercise power or authority over the inhabitants
of the territorial jurisdiction of a particular local government unit. [Emphasis supplied].

Preventive suspension is imposed under the Local Government Code "when the
evidence of guilt is strong and given the gravity of the offense, there is a possibility
that the continuance in office of the respondent could influence the witnesses or pose
a threat to the safety and integrity of the records and other evidence." Under the
Anti-Graft and Corrupt Practices Act, it is imposed after a valid information (that
requires a finding of probable cause) has been filed in court, while under the
Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the
evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; or (b) the charges would
warrant removal from the service; or (c) the respondents continued stay in office may
prejudice the case filed against him.
Notably in all cases of preventive suspension, the suspended official is barred from
performing the functions of his office and does not receive salary in the meanwhile,
but does not vacate and lose title to his office; loss of office is a consequence that
only results upon an eventual finding of guilt or liability.
Preventive suspension is a remedial measure that operates under closely-controlled
conditions and gives a premium to the protection of the service rather than to the
interests of the individual office holder. Even then, protection of the service goes only

To allow a preventively suspended elective official to run for a fourth and prohibited
term is to close our eyes to this reality and to allow a constitutional violation through
sophistry by equating the temporary inability to discharge the functions of office with
the interruption of term that the constitutional provision contemplates. To be sure,
many reasons exist, voluntary or involuntary some of them personal and some of
them by operation of law that may temporarily prevent an elective office holder
from exercising the functions of his office in the way that preventive suspension does.
A serious extended illness, inability through force majeure, or the enforcement of a
suspension as a penalty, to cite some involuntary examples, may prevent an office
holder from exercising the functions of his office for a time without forfeiting title to
office. Preventive suspension is no different because it disrupts actual delivery of
service for a time within a term. Adopting such interruption of actual service as the
standard to determine effective interruption of term under the three-term rule raises
at least the possibility of confusion in implementing this rule, given the many modes
and occasions when actual service may be interrupted in the course of serving a term
of office. The standard may reduce the enforcement of the three-term limit rule to a

case-to-case and possibly see-sawing determination of what an effective interruption

is.
c. Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by operation of law, does not involve a
voluntary act on the part of the suspended official, except in the indirect sense that he
may have voluntarily committed the act that became the basis of the charge against
him. From this perspective, preventive suspension does not have the element of
voluntariness that voluntary renunciation embodies. Neither does it contain the
element of renunciation or loss of title to office as it merely involves the temporary
incapacity to perform the service that an elective office demands. Thus viewed,
preventive suspension is by its very nature the exact opposite of voluntary
renunciation; it is involuntary and temporary, and involves only the actual delivery of
service, not the title to the office. The easy conclusion therefore is that they are, by
nature, different and non-comparable.
But beyond the obvious comparison of their respective natures is the more important
consideration of how they affect the three-term limit rule.
Voluntary renunciation, while involving loss of office and the total incapacity to render
service, is disallowed by the Constitution as an effective interruption of a term. It is
therefore not allowed as a mode of circumventing the three-term limit rule.
Preventive suspension, by its nature, does not involve an effective interruption of a
term and should therefore not be a reason to avoid the three-term limitation. It can
pose as a threat, however, if we shall disregard its nature and consider it an effective
interruption of a term. Let it be noted that a preventive suspension is easier to
undertake than voluntary renunciation, as it does not require relinquishment or loss of
office even for the briefest time. It merely requires an easily fabricated administrative
charge that can be dismissed soon after a preventive suspension has been imposed.
In this sense, recognizing preventive suspension as an effective interruption of a term
can serve as a circumvention more potent than the voluntary renunciation that the
Constitution expressly disallows as an interruption.
Conclusion
To recapitulate, Asilos 2004-2007 term was not interrupted by the Sandiganbayanimposed preventive suspension in 2005, as preventive suspension does not interrupt
an elective officials term. Thus, the COMELEC refused to apply the legal command of
Section 8, Article X of the Constitution when it granted due course to Asilos certificate
of candidacy for a prohibited fourth term. By so refusing, the COMELEC effectively
committed grave abuse of discretion amounting to lack or excess of jurisdiction; its
action was a refusal to perform a positive duty required by no less than the
Constitution and was one undertaken outside the contemplation of law.21
WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY
the assailed COMELEC rulings. The private respondent Wilfredo F. Asilo is declared
DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a
prohibited fourth term. Costs against private respondent Asilo.

TAN V. COMELEC (1986) | ALAMPAY, J.

Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New
Province in the Island of Negros to be known as the Province of Negros del Norte,
which took effect on December 3, 1985, Petitioners herein, who are residents of the
Province of Negros Occidental, in the various cities and municipalities therein, on
December 23, 1985, filed with this Court a case for Prohibition for the purpose of
stopping respondents Commission on Elections from conducting the plebiscite which,
pursuant to and in implementation of the aforesaid law, was scheduled for January 3,
1986. Said law provides:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of
Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador
Benedicto, all in the northern portion of the Island of Negros, are hereby separated
from the province to be known as the Province of Negros del Norte.
SEC. 2. The boundaries of the new province shall be the southern limits of the City of
Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south
and the territorial limits of the northern portion to the Island of Negros on the west,
north and east, comprising a territory of 4,019.95 square kilometers more or less.
SEC. 3. The seat of government of the new province shall be the City of Cadiz.
SEC. 4. A plebiscite shall be conducted in the proposed new province which are the
areas affected within a period of one hundred and twenty days from the approval of
this Act. After the ratification of the creation of the Province of Negros del Norte by a
majority of the votes cast in such plebiscite, the President of the Philippines shall
appoint the first officials of the province.
SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein
provided, the expenses for which shall be charged to local funds.
SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)
Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in
complete accord with the Local Government Code as in Article XI, Section 3 of our
Constitution, it is expressly mandated that
See. 3. No province, city, municipality or barrio may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code, and subject to the approval by a majority of
the votes in a plebiscite in the unit or units affected.
Section 197 of the Local Government Code enumerates the conditions which must
exist to provide the legal basis for the creation of a provincial unit and these requisites
are:
SEC. 197. Requisites for Creation. A province may be created if it has a territory of at
least three thousand five hundred square kilometers, a population of at least five
hundred thousand persons, an average estimated annual income, as certified by the
Ministry of Finance, of not less than ten million pesos for the last three consecutive
years, and its creation shall not reduce the population and income of the mother
province or provinces at the time of said creation to less than the minimum
requirements under this section. The territory need not be contiguous if it comprises
two or more islands.

The average estimated annual income shall include the income alloted for both the
general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring
income. (Rollo, p. 6)
Due to the constraints brought about by the supervening Christmas holidays during
which the Court was in recess and unable to timely consider the petition, a
supplemental pleading was filed by petitioners on January 4, 1986, averring therein
that the plebiscite sought to be restrained by them was held on January 3, 1986 as
scheduled but that there are still serious issues raised in the instant case affecting the
legality, constitutionality and validity of such exercise which should properly be passed
upon and resolved by this Court.
The plebiscite was confined only to the inhabitants of the territory of Negros del
N rte, namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of
Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don
Salvador Benedicto. Because of the exclusions of the voters from the rest of the
province of Negros Occidental, petitioners found need to change the prayer of their
petition "to the end that the constitutional issues which they have raised in the action
will be ventilated and given final resolution.'"At the same time, they asked that the
effects of the plebiscite which they sought to stop be suspended until the Supreme
Court shall have rendered its decision on the very fundamental and far-reaching
questions that petitioners have brought out.
Acknowledging in their supplemental petition that supervening events rendered moot
the prayer in their initial petition that the plebiscite scheduled for January 3, 1986, be
enjoined, petitioners plead, nevertheless, that... a writ of Prohibition be issued, directed to Respondent Commission on Elections to
desist from issuing official proclamation of the results of the plebiscite held on January
3, 1986.
Finding that the exclusion and non-participation of the voters of the Province of
Negros Occidental other than those living within the territory of the new province of
Negros del Norte to be not in accordance with the Constitution, that a writ of
mandamus be issued, directed to the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the qualified voters of the
entire Province of Negros Occidental as now existing shall participate, at the same
time making pronouncement that the plebiscite held on January 3, 1986 has no legal
effect, being a patent legal nullity;
And that a similar writ of Prohibition be issued, directed to the respondent Provincial
Treasurer, to desist from ordering the release of any local funds to answer for
expenses incurred in the holding of such plebiscite until ordered by the Court. (Rollo
pp. 9-10).
Petitioners further prayed that the respondent COMELEC hold in abeyance the
issuance of any official proclamation of the results of the aforestated plebiscite.
During the pendency of this case, a motion that he be allowed to appear as amicus
curiae in this case (dated December 27, 1985 and filed with the Court on January 2,
1986) was submitted by former Senator Ambrosio Padilla. Said motion was granted in
Our resolution of January 2, 1986.
Acting on the petition, as well as on the supplemental petition for prohibition with
preliminary injunction with prayer for restraining order, the Court, on January 7, 1986
resolved, without giving due course to the same, to require respondents to comment,
not to file a motion to dismiss. Complying with said resolution, public respondents,
represented by the Office of the Solicitor General, on January 14, 1986, filed their

Comment, arguing therein that the challenged statute.-Batas Pambansa 885, should
be accorded the presumption of legality. They submit that the said law is not void on
its face and that the petition does not show a clear, categorical and undeniable
demonstration of the supposed infringement of the Constitution. Respondents state
that the powers of the Batasang-Pambansa to enact the assailed law is beyond
question. They claim that Batas Pambansa Big. 885 does not infringe the Constitution
because the requisites of the Local Government Code have been complied with.
Furthermore, they submit that this case has now become moot and academic with the
proclamation of the new Province of Negros del Norte.
Respondents argue that the remaining cities and municipalities of the Province of
Negros Occidental not included in the area of the new Province of Negros del Norte,
de not fall within the meaning and scope of the term "unit or units affected", as
referred to in Section 3 of Art. XI of our Constitution. On this reasoning, respondents
maintain that Batas Pambansa Blg. 885 does not violate the Constitution, invoking and
citing the case of Governor Zosimo Paredes versus the Honorable Executive Secretary
to the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly
the pronouncements therein, hereunder quoted:
1. Admittedly,this is one of those cases where the discretion of the Court is allowed
considerable leeway. There is indeed an element of ambiguity in the use of the
expression 'unit or units affected'. It is plausible to assert as petitioners do that when
certain Barangays are separated from a parent municipality to form a new one, all the
voters therein are affected. It is much more persuasive, however, to contend as
respondents do that the acceptable construction is for those voters, who are not from
the barangays to be separated, should be excluded in the plebiscite.
2. For one thing, it is in accordance with the settled doctrine that between two
possible constructions, one avoiding a finding of unconstitutionality and the other
yielding such a result, the former is to be preferred. That which will save, not that
which will destroy, commends itself for acceptance. After all, the basic presumption all
these years is one of validity. ...

regard, point out and stress that Section 2 of Batas Pambansa Blg. 885 creating said
new province plainly declares that the territorial boundaries of Negros del Norte
comprise an area of 4,019.95 square kilometers, more or less.
As a final argument, respondents insist that instant petition has been rendered moot
and academic considering that a plebiscite has been already conducted on January 3,
1986; that as a result thereof, the corresponding certificate of canvass indicated that
out of 195,134 total votes cast in said plebiscite, 164,734 were in favor of the creation
of Negros del Norte and 30,400 were against it; and because "the affirmative votes
cast represented a majority of the total votes cast in said plebiscite, the Chairman of
the Board of Canvassers proclaimed the new province which shall be known as
"Negros del Norte". Thus, respondents stress the fact that following the proclamation
of Negros del Norte province, the appointments of the officials of said province
created were announced. On these considerations, respondents urge that this case
should be dismissed for having been rendered moot and academic as the creation of
the new province is now a "fait accompli."
In resolving this case, it will be useful to note and emphasize the facts which appear
to be agreed to by the parties herein or stand unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer of the Province of
Negros Occidental has not disbursed, nor was required to disburse any public funds in
connection with the plebiscite held on January 3, 1986 as so disclosed in the
Comment to the Petition filed by the respondent Provincial Treasurer of Negros
Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the
petitioners that said Provincial Treasurer be directed by this Court to desist from
ordering the release of any public funds on account of such plebiscite should not
longer deserve further consideration.
Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas
Pambansa Blg. 885 and the creation of the new Province of Negros del Norte, it
expressly declared in Sec. 2 of the aforementioned Parliamentary Bill, the following:

3. ... Adherence to such philosophy compels the conclusion that when there are
indications that the inhabitants of several barangays are inclined to separate from a
parent municipality they should be allowed to do so. What is more logical than to
ascertain their will in a plebiscite called for that purpose. It is they, and they alone,
who shall constitute the new unit. New responsibilities will be assumed. New burdens
will be imposed. A new municipal corporation will come into existence. Its birth will be
a matter of choice-their choice. They should be left alone then to decide for
themselves. To allow other voters to participate will not yield a true expression of
their will. They may even frustrate it, That certainly will be so if they vote against it
for selfish reasons, and they constitute the majority. That is not to abide by the
fundamental principle of the Constitution to promote local autonomy, the preference
being for smaller units. To rule as this Tribunal does is to follow an accepted principle
of constitutional construction, that in ascertaining the meaning of a particular
provision that may give rise to doubts, the intent of the framers and of the people
may be gleaned from provisions in pari materia.

SEC. 2. The boundaries of the new province shall be the southern limits of the City of
Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the South
and the natural boundaries of the northern portion of the Island of Negros on the
West, North and East, containing an area of 285,656 hectares more or less. (Emphasis
supplied).

Respondents submit that said ruling in the aforecited case applies equally with force
in the case at bar. Respondents also maintain that the requisites under the Local
Government Code (P.D. 337) for the creation of the new province of Negros del Norte
have all been duly complied with, Respondents discredit petitioners' allegations that
the requisite area of 3,500 square kilometers as so prescribed in the Local
Government Code for a new province to be created has not been satisfied. Petitioners
insist that the area which would comprise the new province of Negros del Norte,
would only be about 2,856.56 square kilometers and which evidently would be lesser
than the minimum area prescribed by the governing statute. Respondents, in this

SEC. 1. The boundaries of the new province shall be the southern limits of the City of
Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south
and the territorial limits of the northern portion of the Island of Negros on the West,
North and East, comprising a territory of 4,019.95 square kilometers more or less.

However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas
Pambansa Blg. 885, the boundaries of the new Province of Negros del Norte were
defined therein and its boundaries then stated to be as follows:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of
Calatrava, Toboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador
Benedicto, all in the northern portion of the Island of Negros, are hereby separated
from the Province of Negros Occidental and constituted into a new province to be
known as the Province of Negros del Norte.

Equally accepted by the parties is the fact that under the certification issued by
Provincial Treasurer Julian L. Ramirez of the Province of Negros Occidental, dated July
16, 1985, it was therein certified as follows:

xxx xxx xxx

This is to certify that the following cities and municipalities of Negros Occidental have
the land area as indicated hereunder based on the Special Report No. 3, Philippines
1980, Population, Land Area and Density: 1970, 1975 and 1980 by the National
Census and Statistics Office, Manila.
Land Area
(Sq. Km.)
1. Silay City ...................................................................214.8
2. E.B. Magalona............................................................113.3
3. Victorias.....................................................................133.9
4. Manapla......................................................................112.9
5. Cadiz City ..................................................................516.5
6. Sagay .........................................................................389.6
7. Escalante ....................................................................124.0
8. Toboso.......................................................................123.4
9. Calatrava.....................................................................504.5
10. San Carlos City...........................................................451.3
11. Don Salvador Benedicto.................................... (not available)
This certification is issued upon the request of Dr. Patricio Y. Tan for whatever
purpose it may serve him.
(SGD.) JULIAN L. RAMIREZ
Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).
Although in the above certification it is stated that the land area of the relatively new
municipality of Don Salvador Benedicto is not available, it is an uncontradicted fact
that the area comprising Don Salvador municipality, one of the component units of
the new province, was derived from the City of San Carlos and from the Municipality
of Calatrava, Negros Occidental, and added thereto was a portion of about one-fourth
the land area of the town of Murcia, Negros Occidental. It is significant to note the
uncontroverted submission of petitioners that the total land area of the entire
municipality of Murcia, Negros Occidental is only 322.9 square kilometers (Exh. "D",
Rollo, p. 91). One-fourth of this total land area of Murcia that was added to the
portions derived from the land area of Calatrava, Negros Occidental and San Carlos
City (Negros Occidental) would constitute, therefore, only 80.2 square kilometers. This
area of 80.2 square kilometers if then added to 2,685.2 square kilometers,
representing the total land area of the Cities of Silay, San Carlos and Cadiz and the
Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and
Calatrava, will result in approximately an area of only 2,765.4 square kilometers using
as basis the Special Report, Philippines 1980, Population, Land Area and Density:
1970, 1975 and 1980 of the National Census and Statistics Office, Manila (see Exhibit
"C", Rollo, p. 90).

No controversion has been made by respondent with respect to the allegations of

petitioners that the original provision in the draft legislation, Parliamentary Bill No.
3644, reads:
SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one
hundred and twenty days from the approval of this Act. After the ratification of the
creation of the Province of Negros del Norte by a majority of the votes cast in such
plebiscite, the President shall appoint the first officials of the new province.
However, when Batas Pambansa Blg. 885 was enacted, there was a significant change
in the above provision. The statute, as modified, provides that the requisite plebiscite
"shall be conducted in the proposed new province which are the areas affected."
It is this legislative determination limiting the plebiscite exclusively to the cities and
towns which would comprise the new province that is assailed by the petitioners as
violative of the provisions of our Constitution. Petitioners submit that Sec. 3, ART XI
thereof, contemplates a plebiscite that would be held in the unit or units affected by
the creation of the new province as a result of the consequent division of and
substantial alteration of the boundaries of the existing province. In this instance, the
voters in the remaining areas of the province of Negros Occidental should have been
allowed to participate in the questioned plebiscite.
Considering that the legality of the plebiscite itself is challenged for non-compliance
with constitutional requisites, the fact that such plebiscite had been held and a new
province proclaimed and its officials appointed, the case before Us cannot truly be
viewed as already moot and academic. Continuation of the existence of this newly
proclaimed province which petitioners strongly profess to have been illegally born,
deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its
creation, the commission of that error should not provide the very excuse for
perpetuation of such wrong. For this Court to yield to the respondents' urging that, as
there has been fait accompli then this Court should passively accept and accede to the
prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as
respondents so propose is a proposition fraught with mischief. Respondents'
submission will create a dangerous precedent. Should this Court decline now to
perform its duty of interpreting and indicating what the law is and should be, this
might tempt again those who strut about in the corridors of power to recklessly and
with ulterior motives, create, merge, divide and/or alter the boundaries of political
subdivisions, either brazenly or stealthily, confident that this Court will abstain from
entertaining future challenges to their acts if they manage to bring about a fait
accompli.
In the light of the facts and circumstances alluded to by petitioners as attending to
the unusually rapid creation of the instant province of Negros del Norte after a swiftly
scheduled plebiscite, this Tribunal has the duty to repudiate and discourage the
commission of acts which run counter to the mandate of our fundamental law, done
by whatever branch of our government. This Court gives notice that it will not look
with favor upon those who may be hereafter inclined to ram through all sorts of
legislative measures and then implement the same with indecent haste, even if such
acts would violate the Constitution and the prevailing statutes of our land. It is illogical
to ask that this Tribunal be blind and deaf to protests on the ground that what is
already done is done. To such untenable argument the reply would be that, be this
so, the Court, nevertheless, still has the duty and right to correct and rectify the
wrong brought to its attention.
On the merits of the case.

Aside from the simpler factual issue relative to the land area of the new province of
Negros del Norte, the more significant and pivotal issue in the present case revolves
around in the interpretation and application in the case at bar of Article XI, Section 3
of the Constitution, which being brief and for convenience, We again quote:
SEC. 3. No province, city, municipality or barrio may be created, divided, merged
abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code, and subject to the approval by a majority of
the votes in a plebiscite in the unit or units affected.
It can be plainly seen that the aforecited constitutional provision makes it imperative
that there be first obtained "the approval of a majority of votes in the plebiscite in the
unit or units affected" whenever a province is created, divided or merged and there is
substantial alteration of the boundaries. It is thus inescapable to conclude that the
boundaries of the existing province of Negros Occidental would necessarily be
substantially altered by the division of its existing boundaries in order that there can
be created the proposed new province of Negros del Norte. Plain and simple logic will
demonstrate than that two political units would be affected. The first would be the
parent province of Negros Occidental because its boundaries would be substantially
altered. The other affected entity would be composed of those in the area subtracted
from the mother province to constitute the proposed province of Negros del Norte.
We find no way to reconcile the holding of a plebiscite that should conform to said
constitutional requirement but eliminates the participation of either of these two
component political units. No amount of rhetorical flourishes can justify exclusion of
the parent province in the plebiscite because of an alleged intent on the part of the
authors and implementors of the challenged statute to carry out what is claimed to be
a mandate to guarantee and promote autonomy of local government units. The
alleged good intentions cannot prevail and overrule the cardinal precept that what our
Constitution categorically directs to be done or imposes as a requirement must first be
observed, respected and complied with. No one should be allowed to pay homage to
a supposed fundamental policy intended to guarantee and promote autonomy of local
government units but at the same time transgress, ignore and disregard what the
Constitution commands in Article XI Section 3 thereof. Respondents would be no
different from one who hurries to pray at the temple but then spits at the Idol therein.
We find no merit in the submission of the respondents that the petition should be
dismissed because the motive and wisdom in enacting the law may not be challenged
by petitioners. The principal point raised by the petitioners is not the wisdom and
motive in enacting the law but the infringement of the Constitution which is a proper
subject of judicial inquiry.
Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to
say the least, are most enlightening and provoking but are factual issues the Court
cannot properly pass upon in this case. Mention by petitioners of the unexplained
changes or differences in the proposed Parliamentary Bill No. 3644 and the enacted
Batas Pambansa Blg. 885; the swift and surreptitious manner of passage and approval
of said law; the abrupt scheduling of the plebiscite; the reference to news articles
regarding the questionable conduct of the said plebiscite held on January 3, 1986; all
serve as interesting reading but are not the decisive matters which should be
reckoned in the resolution of this case.
What the Court considers the only significant submissions lending a little support to
respondents' case is their reliance on the rulings and pronouncements made by this
Court in the case of Governor Zosimo Paredes versus The Honorable Executive
Secretary to the President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In
said case relating to a plebiscite held to ratify the creation of a new municipality from
existing barangays, this Court upheld the legality of the plebiscite which was

participated in exclusively by the people of the barangay that would constitute the
new municipality.
This Court is not unmindful of this solitary case alluded to by respondents. What is,
however, highly significant are the prefatory statements therein stating that said case
is "one of those cases where the discretion of the Court is allowed considerable
leeway" and that "there is indeed an element of ambiguity in the use of the
expression unit or units affected." The ruling rendered in said case was based on a
claimed prerogative of the Court then to exercise its discretion on the matter. It did
not resolve the question of how the pertinent provision of the Constitution should be
correctly interpreted.
The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary,
et al. (supra) should not be taken as a doctrinal or compelling precedent when it is
acknowledged therein that "it is plausible to assert, as petitioners do, that when
certain Barangays are separated from a parent municipality to form a new one, all the
voters therein are affected."
It is relevant and most proper to mention that in the aforecited case of Paredes vs.
Executive Secretary, invoked by respondents, We find very lucidly expressed the
strong dissenting view of Justice Vicente Abad Santos, a distinguished member of this
Court, as he therein voiced his opinion, which We hereunder quote:
2. ... when the Constitution speaks of "the unit or units affected" it means all of the
people of the municipality if the municipality is to be divided such as in the case at bar
or an of the people of two or more municipalities if there be a merger. I see no
ambiguity in the Constitutional provision.
This dissenting opinion of Justice Vicente Abad Santos is the forerunner of the ruling
which We now consider applicable to the case at bar, In the analogous case of Emilio
C. Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May 31, 1985,
136 SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein
assailed as suffering from a constitutional infirmity a referendum which did not include
all the people of Bulacan and Rizal, when such referendum was intended to ascertain
if the people of said provinces were willing to give up some of their towns to
Metropolitan Manila. His dissenting opinion served as a useful guideline in the instant
case.
Opportunity to re-examine the views formerly held in said cases is now afforded the
present Court. The reasons in the mentioned cases invoked by respondents herein
were formerly considered acceptable because of the views then taken that local
autonomy would be better promoted However, even this consideration no longer
retains persuasive value.
The environmental facts in the case before Us readily disclose that the subject matter
under consideration is of greater magnitude with concomitant multifarious
complicated problems. In the earlier case, what was involved was a division of a
barangay which is the smallest political unit in the Local Government Code.
Understandably, few and lesser problems are involved. In the case at bar, creation of
a new province relates to the largest political unit contemplated in Section 3, Art. XI of
the Constitution. To form the new province of Negros del Norte no less than three
cities and eight municipalities will be subtracted from the parent province of Negros
Occidental. This will result in the removal of approximately 2,768.4 square kilometers
from the land area of an existing province whose boundaries will be consequently
substantially altered. It becomes easy to realize that the consequent effects cf the
division of the parent province necessarily will affect all the people living in the
separate areas of Negros Occidental and the proposed province of Negros del Norte.
The economy of the parent province as well as that of the new province will be

inevitably affected, either for the better or for the worse. Whatever be the case, either
or both of these political groups will be affected and they are, therefore, the unit or
units referred to in Section 3 of Article XI of the Constitution which must be included
in the plebiscite contemplated therein.
It is a well accepted rule that "in ascertaining the meaning of a particular provision
that may give rise to doubts, the intent of the framers and of the people, may be
gleaned from the provisions in pari materia." Parliamentary Bill No. 3644 which
proposed the creation of the new province of Negros del Norte recites in Sec. 4
thereof that "the plebiscite shall be conducted in the areas affected within a period of
one hundred and twenty days from the approval of this Act." As this draft legislation
speaks of "areas," what was contemplated evidently are plurality of areas to
participate in the plebiscite. Logically, those to be included in such plebiscite would be
the people living in the area of the proposed new province and those living in the
parent province. This assumption will be consistent with the requirements set forth in
the Constitution.
We fail to find any legal basis for the unexplained change made when Parliamentary
Bill No. 3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in
said enabling law that the plebiscite "shall be conducted in the proposed new province
which are the areas affected." We are not disposed to agree that by mere legislative
fiat the unit or units affected referred in the fundamental law can be diminished or
restricted by the Batasang Pambansa to cities and municipalities comprising the new
province, thereby ignoring the evident reality that there are other people necessarily
affected.
In the mind of the Court, the change made by those responsible for the enactment of
Batas Pambansa Blg. 885 betrays their own misgivings. They must have entertained
apprehensions that by holding the plebiscite only in the areas of the new proposed
province, this tactic will be tainted with illegality. In anticipation of a possible strong
challenge to the legality of such a plebiscite there was, therefore, deliberately added
in the enacted statute a self-serving phrase that the new province constitutes the area
affected. Such additional statement serves no useful purpose for the same is
misleading, erroneous and far from truth. The remaining portion of the parent
province is as much an area affected. The substantial alteration of the boundaries of
the parent province, not to mention the other adverse economic effects it might
suffer, eloquently argue the points raised by the petitioners.
Petitioners have averred without contradiction that after the creation of Negros del
Norte, the province of Negros Occidental would be deprived of the long established
Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No
controversion has been made regarding petitioners' assertion that the areas of the
Province of Negros Occidental will be diminished by about 285,656 hectares and it will
lose seven of the fifteen sugar mills which contribute to the economy of the whole
province. In the language of petitioners, "to create Negros del Norte, the existing
territory and political subdivision known as Negros Occidental has to be partitioned
and dismembered. What was involved was no 'birth' but "amputation." We agree with
the petitioners that in the case of Negros what was involved was a division, a
separation; and consequently, as Sec. 3 of Article XI of the Constitution anticipates, a
substantial alteration of boundary.
As contended by petitioners,
Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the
constitutional provision do not contemplate distinct situation isolated from the
mutually exclusive to each other. A Province maybe created where an existing
province is divided or two provinces merged. Such cases necessarily will involve
existing unit or units abolished and definitely the boundary being substantially altered.

It would thus be inaccurate to state that where an existing political unit is divided or
its boundary substantially altered, as the Constitution provides, only some and not all
the voters in the whole unit which suffers dismemberment or substantial alteration of
its boundary are affected. Rather, the contrary is true.
It is also Our considered view that even hypothetically assuming that the merits of
this case can depend on the mere discretion that this Court may exercise,
nevertheless, it is the petitioners' case that deserve to be favored.
It is now time for this Court to set aside the equivocations and the indecisive
pronouncements in the adverted case of Paredes vs. the Honorable Executive
Secretary, et al. (supra). For the reasons already here express, We now state that the
ruling in the two mentioned cases sanctioning the exclusion of the voters belonging to
an existing political unit from which the new political unit will be derived, from
participating in the plebiscite conducted for the purpose of determining the formation
of another new political unit, is hereby abandoned.
In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners
that a writ of mandamus be issued, directing the respondent Commission on
Elections, to schedule the holding of another plebiscite at which all the qualified voters
of the entire province of Negros Occidental as now existing shall participate and that
this Court make a pronouncement that the plebiscite held on January 3, 1986 has no
legal effect for being a patent nullity.
The Court is prepared to declare the said plebiscite held on January 3, 1986 as null
and void and violative of the provisions of Sec. 3, Article XI of the Constitution. The
Court is not, however, disposed to direct the conduct of a new plebiscite, because We
find no legal basis to do so. With constitutional infirmity attaching to the subject Batas
Pambansa Big. 885 and also because the creation of the new province of Negros del
Norte is not in accordance with the criteria established in the Local Government Code,
the factual and legal basis for the creation of such new province which should justify
the holding of another plebiscite does not exist.
Whatever claim it has to validity and whatever recognition has been gained by the
new province of Negros del Norte because of the appointment of the officials thereof,
must now be erased. That Negros del Norte is but a legal fiction should be
announced. Its existence should be put to an end as quickly as possible, if only to
settle the complications currently attending to its creation. As has been manifested,
the parent province of Negros del Norte has been impleaded as the defendant in a
suit filed by the new Province of Negros del Norte, before the Regional Trial Court of
Negros (del Norte), docketed as Civil Case No. 169-C, for the immediate allocation,
distribution and transfer of funds by the parent province to the new province, in an
amount claimed to be at least P10,000,000.00.
The final nail that puts to rest whatever pretension there is to the legality of the
province of Negros del Norte is the significant fact that this created province does not
even satisfy the area requirement prescribed in Section 197 of the Local Government
Code, as earlier discussed.
It is of course claimed by the respondents in their Comment to the exhibits submitted
by the petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a
territory of 4,019.95 square kilometers, more or less. This assertion is made to negate
the proofs submitted, disclosing that the land area of the new province cannot be
more than 3,500 square kilometers because its land area would, at most, be only
about 2,856 square kilometers, taking into account government statistics relative to
the total area of the cities and municipalities constituting Negros del Norte.
Respondents insist that when Section 197 of the Local Government Code speaks of

the territory of the province to be created and requires that such territory be at least
3,500 square kilometers, what is contemplated is not only the land area but also the
land and water over which the said province has jurisdiction and control. It is even the
submission of the respondents that in this regard the marginal sea within the three
mile limit should be considered in determining the extent of the territory of the new
province. Such an interpretation is strained, incorrect, and fallacious.
The last sentence of the first paragraph of Section 197 is most revealing. As so stated
therein the "territory need not be contiguous if it comprises two or more islands." The
use of the word territory in this particular provision of the Local Government Code and
in the very last sentence thereof, clearly reflects that "territory" as therein used, has
reference only to the mass of land area and excludes the waters over which the
political unit exercises control.
Said sentence states that the "territory need not be contiguous." Contiguous means
(a) in physical contact; (b) touching along all or most of one side; (c) near, text, or
adjacent (Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous", when
employed as an adjective, as in the above sentence, is only used when it describes
physical contact, or a touching of sides of two solid masses of matter. The meaning of
particular terms in a statute may be ascertained by reference to words associated with
or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R. p.
110). Therefore, in the context of the sentence above, what need not be "contiguous"
is the "territory" the physical mass of land area. There would arise no need for the
legislators to use the word contiguous if they had intended that the term "territory"
embrace not only land area but also territorial waters. It can be safely concluded that
the word territory in the first paragraph of Section 197 is meant to be synonymous
with "land area" only. The words and phrases used in a statute should be given the
meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words
are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p.
664).
The distinction between "territory" and "land area" which respondents make is an
artificial or strained construction of the disputed provision whereby the words of the
statute are arrested from their plain and obvious meaning and made to bear an
entirely different meaning to justify an absurd or unjust result. The plain meaning in
the language in a statute is the safest guide to follow in construing the statute. A
construction based on a forced or artificial meaning of its words and out of harmony
of the statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p.
909).
It would be rather preposterous to maintain that a province with a small land area but
which has a long, narrow, extended coast line, (such as La Union province) can be
said to have a larger territory than a land-locked province (such as Ifugao or Benguet)
whose land area manifestly exceeds the province first mentioned.
Allegations have been made that the enactment of the questioned state was marred
by "dirty tricks", in the introduction and passing of Parliamentary Bill No. 3644 "in
secret haste" pursuant to sinister designs to achieve "pure and simple
gerrymandering; "that recent happenings more than amply demonstrate that far from
guaranteeing its autonomy it (Negros del Norte) has become the fiefdom of a local
strongman" (Rollo, p. 43; emphasis supplied).
It is not for this Court to affirm or reject such matters not only because the merits of
this case can be resolved without need of ascertaining the real motives and wisdom in
the making of the questioned law. No proper challenge on those grounds can also be
made by petitioners in this proceeding. Neither may this Court venture to guess the
motives or wisdom in the exercise of legislative powers. Repudiation of improper or

unwise actions taken by tools of a political machinery rests ultimately, as recent

events have shown, on the electorate and the power of a vigilant people.
Petitioners herein deserve and should receive the gratitude of the people of the
Province of Negros Occidental and even by our Nation. Commendable is the patriotism
displayed by them in daring to institute this case in order to preserve the continued
existence of their historic province. They were inspired undoubtedly by their faithful
commitment to our Constitution which they wish to be respected and obeyed. Despite
the setbacks and the hardships which petitioners aver confronted them, they valiantly
and unfalteringly pursued a worthy cause. A happy destiny for our Nation is assured
as long as among our people there would be exemplary citizens such as the
petitioners herein.
WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The
proclamation of the new province of Negros del Norte, as well as the appointment of
the officials thereof are also declared null and void.

LEAGUE OF CITIES OF THE PHILS V. COMELEC (2008) | CARPIO, J.:

The Case
These are consolidated petitions for prohibition1 with prayer for the issuance of a writ
of preliminary injunction or temporary restraining order filed by the League of Cities of
the Philippines, City of Iloilo, City of Calbayog, and Jerry P. Treas2 assailing the
constitutionality of the subject Cityhood Laws and enjoining the Commission on
Elections (COMELEC) and respondent municipalities from conducting plebiscites
pursuant to the Cityhood Laws.
The Facts
During the 11th Congress,3 Congress enacted into law 33 bills converting 33
municipalities into cities. However, Congress did not act on bills converting 24 other
municipalities into cities.
During the 12th Congress,4 Congress enacted into law Republic Act No. 9009 (RA
9009),5 which took effect on 30 June 2001. RA 9009 amended Section 450 of the
Local Government Code by increasing the annual income requirement for conversion
of a municipality into a city from P20 million to P100 million. The rationale for the
amendment was to restrain, in the words of Senator Aquilino Pimentel, "the mad
rush" of municipalities to convert into cities solely to secure a larger share in the
Internal Revenue Allotment despite the fact that they are incapable of fiscal
independence.6
After the effectivity of RA 9009, the House of Representatives of the 12th Congress7
adopted Joint Resolution No. 29,8 which sought to exempt from the P100 million
income requirement in RA 9009 the 24 municipalities whose cityhood bills were not
approved in the 11th Congress. However, the 12th Congress ended without the
Senate approving Joint Resolution No. 29.
During the 13th Congress,9 the House of Representatives re-adopted Joint Resolution
No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for approval.
However, the Senate again failed to approve the Joint Resolution. Following the
advice of Senator Aquilino Pimentel, 16 municipalities filed, through their respective
sponsors, individual cityhood bills. The 16 cityhood bills contained a common provision
exempting all the 16 municipalities from the P100 million income requirement in RA
9009.
On 22 December 2006, the House of Representatives approved the cityhood bills. The
Senate also approved the cityhood bills in February 2007, except that of Naga, Cebu
which was passed on 7 June 2007. The cityhood bills lapsed into law (Cityhood
Laws10) on various dates from March to July 2007 without the President's
signature.11
The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether the
voters in each respondent municipality approve of the conversion of their municipality
into a city.
Petitioners filed the present petitions to declare the Cityhood Laws unconstitutional for
violation of Section 10, Article X of the Constitution, as well as for violation of the
equal protection clause.12 Petitioners also lament that the wholesale conversion of
municipalities into cities will reduce the share of existing cities in the Internal Revenue
Allotment because more cities will share the same amount of internal revenue set
aside for all cities under Section 285 of the Local Government Code.13
The Issues

The petitions raise the following fundamental issues:

1. Whether the Cityhood Laws violate Section 10, Article X of the Constitution; and
2. Whether the Cityhood Laws violate the equal protection clause.
The Ruling of the Court
We grant the petitions.
The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution, and are
thus unconstitutional.
First, applying the P100 million income requirement in RA 9009 to the present case is
a prospective, not a retroactive application, because RA 9009 took effect in 2001
while the cityhood bills became law more than five years later.
Second, the Constitution requires that Congress shall prescribe all the criteria for the
creation of a city in the Local Government Code and not in any other law, including
the Cityhood Laws.
Third, the Cityhood Laws violate Section 6, Article X of the Constitution because they
prevent a fair and just distribution of the national taxes to local government units.
Fourth, the criteria prescribed in Section 450 of the Local Government Code, as
amended by RA 9009, for converting a municipality into a city are clear, plain and
unambiguous, needing no resort to any statutory construction.
Fifth, the intent of members of the 11th Congress to exempt certain municipalities
from the coverage of RA 9009 remained an intent and was never written into Section
450 of the Local Government Code.
Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or
resolutions are not extrinsic aids in interpreting a law passed in the 13th Congress.
Seventh, even if the exemption in the Cityhood Laws were written in Section 450 of
the Local Government Code, the exemption would still be unconstitutional for violation
of the equal protection clause.
Preliminary Matters
Prohibition is the proper action for testing the constitutionality of laws administered by
the COMELEC,14 like the Cityhood Laws, which direct the COMELEC to hold plebiscites
in implementation of the Cityhood Laws. Petitioner League of Cities of the Philippines
has legal standing because Section 499 of the Local Government Code tasks the
League with the "primary purpose of ventilating, articulating and crystallizing issues
affecting city government administration and securing, through proper and legal
means, solutions thereto."15 Petitioners-in-intervention,16 which are existing cities,
have legal standing because their Internal Revenue Allotment will be reduced if the
Cityhood Laws are declared constitutional. Mayor Jerry P. Treas has legal standing
because as Mayor of Iloilo City and as a taxpayer he has sufficient interest to prevent
the unlawful expenditure of public funds, like the release of more Internal Revenue
Allotment to political units than what the law allows.
Applying RA 9009 is a Prospective Application of the Law

RA 9009 became effective on 30 June 2001 during the 11th Congress. This law
specifically amended Section 450 of the Local Government Code, which now provides:
Section 450. Requisites for Creation. (a) A municipality or a cluster of barangays
may be converted into a component city if it has a locally generated average annual
income, as certified by the Department of Finance, of at least One hundred million
pesos (P100,000,000.00) for the last two (2) consecutive years based on 2000
constant prices, and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers, as certified
by the Land Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as
certified by the National Statistics Office.
The creation thereof shall not reduce the land area, population and income of the
original unit or units at the time of said creation to less than the minimum
requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by
metes and bounds. The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands. The territory need not
be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, transfers, and non-recurring income. (Emphasis supplied)
Thus, RA 9009 increased the income requirement for conversion of a municipality into
a city from P20 million to P100 million. Section 450 of the Local Government Code, as
amended by RA 9009, does not provide any exemption from the increased income
requirement.
Prior to the enactment of RA 9009, a total of 57 municipalities had cityhood bills
pending in Congress. Thirty-three cityhood bills became law before the enactment of
RA 9009. Congress did not act on 24 cityhood bills during the 11th Congress.
During the 12th Congress, the House of Representatives adopted Joint Resolution No.
29, exempting from the income requirement of P100 million in RA 9009 the 24
municipalities whose cityhood bills were not acted upon during the 11th Congress.
This Resolution reached the Senate. However, the 12th Congress adjourned without
the Senate approving Joint Resolution No. 29.
During the 13th Congress, 16 of the 24 municipalities mentioned in the unapproved
Joint Resolution No. 29 filed between November and December of 2006, through their
respective sponsors in Congress, individual cityhood bills containing a common
provision, as follows:
Exemption from Republic Act No. 9009. - The City of x x x shall be exempted from the
income requirement prescribed under Republic Act No. 9009.
This common provision exempted each of the 16 municipalities from the income
requirement of P100 million prescribed in Section 450 of the Local Government Code,
as amended by RA 9009. These cityhood bills lapsed into law on various dates from
March to July 2007 after President Gloria Macapagal-Arroyo failed to sign them.
Indisputably, Congress passed the Cityhood Laws long after the effectivity of RA 9009.
RA 9009 became effective on 30 June 2001 or during the 11th Congress. The 13th
Congress passed in December 2006 the cityhood bills which became law only in 2007.

Thus, respondent municipalities cannot invoke the principle of non-retroactivity of

laws.17 This basic rule has no application because RA 9009, an earlier law to the
Cityhood Laws, is not being applied retroactively but prospectively.
Congress Must Prescribe in the Local Government Code All Criteria
Section 10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay shall be created, divided, merged,
abolished or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected. (Emphasis supplied)
The Constitution is clear. The creation of local government units must follow the
criteria established in the Local Government Code and not in any other law. There is
only one Local Government Code.18 The Constitution requires Congress to stipulate in
the Local Government Code all the criteria necessary for the creation of a city,
including the conversion of a municipality into a city. Congress cannot write such
criteria in any other law, like the Cityhood Laws.
The criteria prescribed in the Local Government Code govern exclusively the creation
of a city. No other law, not even the charter of the city, can govern such creation. The
clear intent of the Constitution is to insure that the creation of cities and other political
units must follow the same uniform, non-discriminatory criteria found solely in the
Local Government Code. Any derogation or deviation from the criteria prescribed in
the Local Government Code violates Section 10, Article X of the Constitution.
RA 9009 amended Section 450 of the Local Government Code to increase the income
requirement from P20 million to P100 million for the creation of a city. This took effect
on 30 June 2001. Hence, from that moment the Local Government Code required that
any municipality desiring to become a city must satisfy the P100 million income
requirement. Section 450 of the Local Government Code, as amended by RA 9009,
does not contain any exemption from this income requirement.
In enacting RA 9009, Congress did not grant any exemption to respondent
municipalities, even though their cityhood bills were pending in Congress when
Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA
9009, explicitly exempt respondent municipalities from the increased income
requirement in Section 450 of the Local Government Code, as amended by RA 9009.
Such exemption clearly violates Section 10, Article X of the Constitution and is thus
patently unconstitutional. To be valid, such exemption must be written in the Local
Government Code and not in any other law, including the Cityhood Laws.
Cityhood Laws Violate Section 6, Article X of the Constitution
Uniform and non-discriminatory criteria as prescribed in the Local Government Code
are essential to implement a fair and equitable distribution of national taxes to all local
government units. Section 6, Article X of the Constitution provides:
Local government units shall have a just share, as determined by law, in the national
taxes which shall be automatically released to them. (Emphasis supplied)
If the criteria in creating local government units are not uniform and discriminatory,
there can be no fair and just distribution of the national taxes to local government
units.
A city with an annual income of only P20 million, all other criteria being equal, should
not receive the same share in national taxes as a city with an annual income of P100

million or more. The criteria of land area, population and income, as prescribed in
Section 450 of the Local Government Code, must be strictly followed because such
criteria, prescribed by law, are material in determining the "just share" of local
government units in national taxes. Since the Cityhood Laws do not follow the income
criterion in Section 450 of the Local Government Code, they prevent the fair and just
distribution of the Internal Revenue Allotment in violation of Section 6, Article X of the
Constitution.
Section 450 of the Local Government Code is Clear,
Plain and Unambiguous
There can be no resort to extrinsic aids like deliberations of Congress if the
language of the law is plain, clear and unambiguous. Courts determine the intent of
the law from the literal language of the law, within the law's four corners.19 If the
language of the law is plain, clear and unambiguous, courts simply apply the law
according to its express terms. If a literal application of the law results in absurdity,
impossibility or injustice, then courts may resort to extrinsic aids of statutory
construction like the legislative history of the law.20
Congress, in enacting RA 9009 to amend Section 450 of the Local Government Code,
did not provide any exemption from the increased income requirement, not even to
respondent municipalities whose cityhood bills were then pending when Congress
passed RA 9009. Section 450 of the Local Government Code, as amended by RA
9009, contains no exemption whatsoever. Since the law is clear, plain and
unambiguous that any municipality desiring to convert into a city must meet the
increased income requirement, there is no reason to go beyond the letter of the law in
applying Section 450 of the Local Government Code, as amended by RA 9009.
The 11th Congress' Intent was not Written into the Local Government Code
True, members of Congress discussed exempting respondent municipalities from RA
9009, as shown by the various deliberations on the matter during the 11th Congress.
However, Congress did not write this intended exemption into law. Congress could
have easily included such exemption in RA 9009 but Congress did not. This is fatal to
the cause of respondent municipalities because such exemption must appear in RA
9009 as an amendment to Section 450 of the Local Government Code. The
Constitution requires that the criteria for the conversion of a municipality into a city,
including any exemption from such criteria, must all be written in the Local
Government Code. Congress cannot prescribe such criteria or exemption from such
criteria in any other law. In short, Congress cannot create a city through a law that
does not comply with the criteria or exemption found in the Local Government Code.
Section 10 of Article X is similar to Section 16, Article XII of the Constitution
prohibiting Congress from creating private corporations except by a general law.
Section 16 of Article XII provides:
The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or controlled
corporations may be created or established by special charters in the interest of the
common good and subject to the test of economic viability. (Emphasis supplied)
Thus, Congress must prescribe all the criteria for the "formation, organization, or
regulation" of private corporations in a general law applicable to all without
discrimination.21 Congress cannot create a private corporation through a special law
or charter.
Deliberations of the 11th Congress on Unapproved Bills Inapplicable

Congress is not a continuing body.22 The unapproved cityhood bills filed during the
11th Congress became mere scraps of paper upon the adjournment of the 11th
Congress. All the hearings and deliberations conducted during the 11th Congress on
unapproved bills also became worthless upon the adjournment of the 11th Congress.
These hearings and deliberations cannot be used to interpret bills enacted into law in
the 13th or subsequent Congresses.
The members and officers of each Congress are different. All unapproved bills filed in
one Congress become functus officio upon adjournment of that Congress and must be
re-filed anew in order to be taken up in the next Congress. When their respective
authors re-filed the cityhood bills in 2006 during the 13th Congress, the bills had to
start from square one again, going through the legislative mill just like bills taken up
for the first time, from the filing to the approval. Section 123, Rule XLIV of the Rules
of the Senate, on Unfinished Business, provides:
Sec. 123. x x x
All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if presented for the first
time. (Emphasis supplied)
Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished
Business, states:
Section 78. Calendar of Business. The Calendar of Business shall consist of the
following:
a. Unfinished Business. This is business being considered by the House at the time of
its last adjournment. Its consideration shall be resumed until it is disposed of. The
Unfinished Business at the end of a session shall be resumed at the commencement
of the next session as if no adjournment has taken place. At the end of the term of a
Congress, all Unfinished Business are deemed terminated. (Emphasis supplied)
Thus, the deliberations during the 11th Congress on the unapproved cityhood bills, as
well as the deliberations during the 12th and 13th Congresses on the unapproved
resolution exempting from RA 9009 certain municipalities, have no legal significance.
They do not qualify as extrinsic aids in construing laws passed by subsequent
Congresses.
Applicability of Equal Protection Clause
If Section 450 of the Local Government Code, as amended by RA 9009, contained an
exemption to the P100 million annual income requirement, the criteria for such
exemption could be scrutinized for possible violation of the equal protection clause.
Thus, the criteria for the exemption, if found in the Local Government Code, could be
assailed on the ground of absence of a valid classification. However, Section 450 of
the Local Government Code, as amended by RA 9009, does not contain any
exemption. The exemption is contained in the Cityhood Laws, which are
unconstitutional because such exemption must be prescribed in the Local Government
Code as mandated in Section 10, Article X of the Constitution.
Even if the exemption provision in the Cityhood Laws were written in Section 450 of
the Local Government Code, as amended by RA 9009, such exemption would still be
unconstitutional for violation of the equal protection clause. The exemption provision
merely states, "Exemption from Republic Act No. 9009 The City of x x x shall be
exempted from the income requirement prescribed under Republic Act No. 9009."
This one sentence exemption provision contains no classification standards or

guidelines differentiating the exempted municipalities from those that are not
exempted.
Even if we take into account the deliberations in the 11th Congress that municipalities
with pending cityhood bills should be exempt from the P100 million income
requirement, there is still no valid classification to satisfy the equal protection clause.
The exemption will be based solely on the fact that the 16 municipalities had cityhood
bills pending in the 11th Congress when RA 9009 was enacted. This is not a valid
classification between those entitled and those not entitled to exemption from the
P100 million income requirement.
To be valid, the classification in the present case must be based on substantial
distinctions, rationally related to a legitimate government objective which is the
purpose of the law,23 not limited to existing conditions only, and applicable to all
similarly situated. Thus, this Court has ruled:
The equal protection clause of the 1987 Constitution permits a valid classification
under the following conditions:
1. The classification must rest on substantial distinctions;
2. The classification must be germane to the purpose of the law;
3. The classification must not be limited to existing conditions only; and
4. The classification must apply equally to all members of the same class.24
There is no substantial distinction between municipalities with pending cityhood bills
in the 11th Congress and municipalities that did not have pending bills. The mere
pendency of a cityhood bill in the 11th Congress is not a material difference to
distinguish one municipality from another for the purpose of the income requirement.
The pendency of a cityhood bill in the 11th Congress does not affect or determine the
level of income of a municipality. Municipalities with pending cityhood bills in the 11th
Congress might even have lower annual income than municipalities that did not have
pending cityhood bills. In short, the classification criterion mere pendency of a
cityhood bill in the 11th Congress is not rationally related to the purpose of the law
which is to prevent fiscally non-viable municipalities from converting into cities.
Municipalities that did not have pending cityhood bills were not informed that a
pending cityhood bill in the 11th Congress would be a condition for exemption from
the increased P100 million income requirement. Had they been informed, many
municipalities would have caused the filing of their own cityhood bills. These
municipalities, even if they have bigger annual income than the 16 respondent
municipalities, cannot now convert into cities if their income is less than P100 million.
The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a
specific condition existing at the time of passage of RA 9009. That specific condition
will never happen again. This violates the requirement that a valid classification must
not be limited to existing conditions only. This requirement is illustrated in Mayflower
Farms, Inc. v. Ten Eyck,25 where the challenged law allowed milk dealers engaged in
business prior to a fixed date to sell at a price lower than that allowed to newcomers
in the same business. In Mayflower, the U.S. Supreme Court held:
We are referred to a host of decisions to the effect that a regulatory law may be
prospective in operation and may except from its sweep those presently engaged in
the calling or activity to which it is directed. Examples are statutes licensing physicians
and dentists, which apply only to those entering the profession subsequent to the
passage of the act and exempt those then in practice, or zoning laws which exempt

existing buildings, or laws forbidding slaughterhouses within certain areas, but

excepting existing establishments. The challenged provision is unlike such laws, since,
on its face, it is not a regulation of a business or an activity in the interest of, or for
the protection of, the public, but an attempt to give an economic advantage to those
engaged in a given business at an arbitrary date as against all those who enter the
industry after that date. The appellees do not intimate that the classification bears any
relation to the public health or welfare generally; that the provision will discourage
monopoly; or that it was aimed at any abuse, cognizable by law, in the milk business.
In the absence of any such showing, we have no right to conjure up possible
situations which might justify the discrimination. The classification is arbitrary and
unreasonable and denies the appellant the equal protection of the law. (Emphasis
supplied)
In the same vein, the exemption provision in the Cityhood Laws gives the 16
municipalities a unique advantage based on an arbitrary date the filing of their
cityhood bills before the end of the 11th Congress - as against all other municipalities
that want to convert into cities after the effectivity of RA 9009.
Furthermore, limiting the exemption only to the 16 municipalities violates the
requirement that the classification must apply to all similarly situated. Municipalities
with the same income as the 16 respondent municipalities cannot convert into cities,
while the 16 respondent municipalities can. Clearly, as worded the exemption
provision found in the Cityhood Laws, even if it were written in Section 450 of the
Local Government Code, would still be unconstitutional for violation of the equal
protection clause.
WHEREFORE, we GRANT the petitions and declare UNCONSTITUTIONAL the Cityhood
Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404,
9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.

SEMA V. COMELEC (2008) | CARPIO, J.

The Case
These consolidated petitions1 seek to annul Resolution No. 7902, dated 10 May 2007,
of the Commission on Elections (COMELEC) treating Cotabato City as part of the
legislative district of the Province of Shariff Kabunsuan.2
The Facts
The Ordinance appended to the 1987 Constitution apportioned two legislative districts
for the Province of Maguindanao. The first legislative district consists of Cotabato City
and eight municipalities.3 Maguindanao forms part of the Autonomous Region in
Muslim Mindanao (ARMM), created under its Organic Act, Republic Act No. 6734 (RA
6734), as amended by Republic Act No. 9054 (RA 9054).4 Although under the
Ordinance, Cotabato City forms part of Maguindanaos first legislative district, it is not
part of the ARMM but of Region XII, having voted against its inclusion in the ARMM in
the plebiscite held in November 1989.
On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly, exercising
its power to create provinces under Section 19, Article VI of RA 9054,5 enacted
Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of
Shariff Kabunsuan composed of the eight municipalities in the first district of
Maguindanao. MMA Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan,
Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated from
the Province of Maguindanao and constituted into a distinct and independent
province, which is hereby created, to be known as the Province of Shariff Kabunsuan.
xxxx
Sec. 5. The corporate existence of this province shall commence upon the
appointment by the Regional Governor or election of the governor and majority of the
regular members of the Sangguniang Panlalawigan.
The incumbent elective provincial officials of the Province of Maguindanao shall
continue to serve their unexpired terms in the province that they will choose or where
they are residents: Provided, that where an elective position in both provinces
becomes vacant as a consequence of the creation of the Province of Shariff
Kabunsuan, all incumbent elective provincial officials shall have preference for
appointment to a higher elective vacant position and for the time being be appointed
by the Regional Governor, and shall hold office until their successors shall have been
elected and qualified in the next local elections; Provided, further, that they shall
continue to receive the salaries they are receiving at the time of the approval of this
Act until the new readjustment of salaries in accordance with law. Provided,
furthermore, that there shall be no diminution in the number of the members of the
Sangguniang Panlalawigan of the mother province.
Except as may be provided by national law, the existing legislative district, which
includes Cotabato as a part thereof, shall remain.
Later, three new municipalities6 were carved out of the original nine municipalities
constituting Shariff Kabunsuan, bringing its total number of municipalities to 11. Thus,
what was left of Maguindanao were the municipalities constituting its second
legislative district. Cotabato City, although part of Maguindanaos first legislative
district, is not part of the Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuans creation in a plebiscite held on

29 October 2006.
On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution
No. 3999 requesting the COMELEC to "clarify the status of Cotabato City in view of the
conversion of the First District of Maguindanao into a regular province" under MMA
Act 201.
In answer to Cotabato Citys query, the COMELEC issued Resolution No. 07-0407 on 6
March 2007 "maintaining the status quo with Cotabato City as part of Shariff
Kabunsuan in the First Legislative District of Maguindanao." Resolution No. 07-0407,
which adopted the recommendation of the COMELECs Law Department under a
Memorandum dated 27 February 2007,7 provides in pertinent parts:
Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt
the recommendation of the Law Department that pending the enactment of the
appropriate law by Congress, to maintain the status quo with Cotabato City as part of
Shariff Kabunsuan in the First Legislative District of Maguindanao. (Emphasis supplied)
However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on
29 March 2007 Resolution No. 7845 stating that Maguindanaos first legislative district
is composed only of Cotabato City because of the enactment of MMA Act 201.8
On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions,
amending Resolution No. 07-0407 by renaming the legislative district in question as
"Shariff Kabunsuan Province with Cotabato City (formerly First District of Maguindanao
with Cotabato City)."91avvphi1
In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for
Representative of "Shariff Kabunsuan with Cotabato City," prayed for the nullification
of COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes cast
in Cotabato City for that office. Sema contended that Shariff Kabunsuan is entitled to
one representative in Congress under Section 5 (3), Article VI of the Constitution10
and Section 3 of the Ordinance appended to the Constitution.11 Thus, Sema asserted
that the COMELEC acted without or in excess of its jurisdiction in issuing Resolution
No. 7902 which maintained the status quo in Maguindanaos first legislative district
despite the COMELECs earlier directive in Resolution No. 7845 designating Cotabato
City as the lone component of Maguindanaos reapportioned first legislative district.12
Sema further claimed that in issuing Resolution No. 7902, the COMELEC usurped
Congress power to create or reapportion legislative districts.
In its Comment, the COMELEC, through the Office of the Solicitor General (OSG),
chose not to reach the merits of the case and merely contended that (1) Sema
wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902
because the COMELEC issued the same in the exercise of its administrative, not quasijudicial, power and (2) Semas prayer for the writ of prohibition in G.R. No. 177597
became moot with the proclamation of respondent Didagen P. Dilangalen (respondent
Dilangalen) on 1 June 2007 as representative of the legislative district of Shariff
Kabunsuan Province with Cotabato City.
In his Comment, respondent Dilangalen countered that Sema is estopped from
questioning COMELEC Resolution No. 7902 because in her certificate of candidacy
filed on 29 March 2007, Sema indicated that she was seeking election as
representative of "Shariff Kabunsuan including Cotabato City." Respondent Dilangalen
added that COMELEC Resolution No. 7902 is constitutional because it did not
apportion a legislative district for Shariff Kabunsuan or reapportion the legislative
districts in Maguindanao but merely renamed Maguindanaos first legislative district.
Respondent Dilangalen further claimed that the COMELEC could not reapportion

Maguindanaos first legislative district to make Cotabato City its sole component unit
as the power to reapportion legislative districts lies exclusively with Congress, not to
mention that Cotabato City does not meet the minimum population requirement under
Section 5 (3), Article VI of the Constitution for the creation of a legislative district
within a city.13
Sema filed a Consolidated Reply controverting the matters raised in respondents
Comments and reiterating her claim that the COMELEC acted ultra vires in issuing
Resolution No. 7902.
In the Resolution of 4 September 2007, the Court required the parties in G.R. No.
177597 to comment on the issue of whether a province created by the ARMM
Regional Assembly under Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of a national law
creating a legislative district for such new province. The parties submitted their
compliance as follows:
(1) Sema answered the issue in the affirmative on the following grounds: (a) the
Court in Felwa v. Salas14 stated that "when a province is created by statute, the
corresponding representative district comes into existence neither by authority of that
statute which cannot provide otherwise nor by apportionment, but by operation
of the Constitution, without a reapportionment"; (b) Section 462 of Republic Act No.
7160 (RA 7160) "affirms" the apportionment of a legislative district incident to the
creation of a province; and (c) Section 5 (3), Article VI of the Constitution and Section
3 of the Ordinance appended to the Constitution mandate the apportionment of a
legislative district in newly created provinces.
(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier
stance on the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined
causes with Sema, contending that Section 5 (3), Article VI of the Constitution is "selfexecuting." Thus, every new province created by the ARMM Regional Assembly is ipso
facto entitled to one representative in the House of Representatives even in the
absence of a national law; and
(3) Respondent Dilangalen answered the issue in the negative on the following
grounds: (a) the "province" contemplated in Section 5 (3), Article VI of the
Constitution is one that is created by an act of Congress taking into account the
provisions in RA 7160 on the creation of provinces; (b) Section 3, Article IV of RA
9054 withheld from the ARMM Regional Assembly the power to enact measures
relating to national elections, which encompasses the apportionment of legislative
districts for members of the House of Representatives; (c) recognizing a legislative
district in every province the ARMM Regional Assembly creates will lead to the
disproportionate representation of the ARMM in the House of Representatives as the
Regional Assembly can create provinces without regard to the requirements in Section
461 of RA 7160; and (d) Cotabato City, which has a population of less than 250,000,
is not entitled to a representative in the House of Representatives.
On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral
arguments on the following issues: (1) whether Section 19, Article VI of RA 9054,
delegating to the ARMM Regional Assembly the power to create provinces, is
constitutional; and (2) if in the affirmative, whether a province created under Section
19, Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative district for such
new province.15
In compliance with the Resolution dated 27 November 2007, the parties in G.R. No.
177597 filed their respective Memoranda on the issues raised in the oral

arguments.16 On the question of the constitutionality of Section 19, Article VI of RA

9054, the parties in G.R. No. 177597 adopted the following positions:
(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a
valid delegation by Congress to the ARMM of the power to create provinces under
Section 20 (9), Article X of the Constitution granting to the autonomous regions,
through their organic acts, legislative powers over "other matters as may be
authorized by law for the promotion of the general welfare of the people of the
region" and (b) as an amendment to Section 6 of RA 7160.17 However, Sema
concedes that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the
ARMM Regional Assembly of the power to "prescribe standards lower than those
mandated" in RA 7160 in the creation of provinces contravenes Section 10, Article X
of the Constitution.18 Thus, Sema proposed that Section 19 "should be construed as
prohibiting the Regional Assembly from prescribing standards x x x that do not comply
with the minimum criteria" under RA 7160.19
(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is
unconstitutional on the following grounds: (a) the power to create provinces was not
among those granted to the autonomous regions under Section 20, Article X of the
Constitution and (b) the grant under Section 19, Article VI of RA 9054 to the ARMM
Regional Assembly of the power to prescribe standards lower than those mandated in
Section 461 of RA 7160 on the creation of provinces contravenes Section 10, Article X
of the Constitution and the Equal Protection Clause; and
(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen (thus
effectively abandoning the position the COMELEC adopted in its Compliance with the
Resolution of 4 September 2007) and contended that Section 19, Article VI of RA
9054 is unconstitutional because (a) it contravenes Section 10 and Section 6,20 Article
X of the Constitution and (b) the power to create provinces was withheld from the
autonomous regions under Section 20, Article X of the Constitution.
On the question of whether a province created under Section 19, Article VI of RA
9054 is entitled to one representative in the House of Representatives without need of
a national law creating a legislative district for such new province, Sema and
respondent Dilangalen reiterated in their Memoranda the positions they adopted in
their Compliance with the Resolution of 4 September 2007. The COMELEC deemed it
unnecessary to submit its position on this issue considering its stance that Section 19,
Article VI of RA 9054 is unconstitutional.
The pendency of the petition in G.R. No. 178628 was disclosed during the oral
arguments on 27 November 2007. Thus, in the Resolution of 19 February 2008, the
Court ordered G.R. No. 178628 consolidated with G.R. No. 177597. The petition in
G.R. No. 178628 echoed Sema's contention that the COMELEC acted ultra vires in
issuing Resolution No. 7902 depriving the voters of Cotabato City of a representative
in the House of Representatives. In its Comment to the petition in G.R. No. 178628,
the COMELEC, through the OSG, maintained the validity of COMELEC Resolution No.
7902 as a temporary measure pending the enactment by Congress of the "appropriate
law."
The Issues
The petitions raise the following issues:
I. In G.R. No. 177597:
(A) Preliminarily

(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the
constitutionality of COMELEC Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as representative of Shariff
Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.
(B) On the merits
(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional
Assembly the power to create provinces, cities, municipalities and barangays, is
constitutional; and
(2) if in the affirmative, whether a province created by the ARMM Regional Assembly
under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of a national law
creating a legislative district for such province.
II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902 is
valid for maintaining the status quo in the first legislative district of Maguindanao (as
"Shariff Kabunsuan Province with Cotabato City [formerly First District of Maguindanao
with Cotabato City]"), despite the creation of the Province of Shariff Kabunsuan out of
such district (excluding Cotabato City).
The Ruling of the Court
The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is
unconstitutional insofar as it grants to the ARMM Regional Assembly the power to
create provinces and cities; (2) MMA Act 201 creating the Province of Shariff
Kabunsuan is void; and (3) COMELEC Resolution No. 7902 is valid.
On the Preliminary Matters
The Writ of Prohibition is Appropriate
to Test the Constitutionality of
Election Laws, Rules and Regulations
The purpose of the writ of Certiorari is to correct grave abuse of discretion by "any
tribunal, board, or officer exercising judicial or quasi-judicial functions."21 On the
other hand, the writ of Mandamus will issue to compel a tribunal, corporation, board,
officer, or person to perform an act "which the law specifically enjoins as a duty."22
True, the COMELEC did not issue Resolution No. 7902 in the exercise of its judicial or
quasi-judicial functions.23 Nor is there a law which specifically enjoins the COMELEC
to exclude from canvassing the votes cast in Cotabato City for representative of
"Shariff Kabunsuan Province with Cotabato City." These, however, do not justify the
outright dismissal of the petition in G.R. No. 177597 because Sema also prayed for
the issuance of the writ of Prohibition and we have long recognized this writ as proper
for testing the constitutionality of election laws, rules, and regulations.24
Respondent Dilangalens Proclamation
Does Not Moot the Petition
There is also no merit in the claim that respondent Dilangalens proclamation as
winner in the 14 May 2007 elections for representative of "Shariff Kabunsuan Province
with Cotabato City" mooted this petition. This case does not concern respondent
Dilangalens election. Rather, it involves an inquiry into the validity of COMELEC
Resolution No. 7902, as well as the constitutionality of MMA Act 201 and Section 19,
Article VI of RA 9054. Admittedly, the outcome of this petition, one way or another,
determines whether the votes cast in Cotabato City for representative of the district of

"Shariff Kabunsuan Province with Cotabato City" will be included in the canvassing of
ballots. However, this incidental consequence is no reason for us not to proceed with
the resolution of the novel issues raised here. The Courts ruling in these petitions
affects not only the recently concluded elections but also all the other succeeding
elections for the office in question, as well as the power of the ARMM Regional
Assembly to create in the future additional provinces.
On the Main Issues
Whether the ARMM Regional Assembly
Can Create the Province of Shariff Kabunsuan
The creation of local government units is governed by Section 10, Article X of the
Constitution, which provides:
Sec. 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished or its boundary substantially altered except in accordance with the criteria
established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected.
Thus, the creation of any of the four local government units province, city,
municipality or barangay must comply with three conditions. First, the creation of a
local government unit must follow the criteria fixed in the Local Government Code.
Second, such creation must not conflict with any provision of the Constitution. Third,
there must be a plebiscite in the political units affected.
There is neither an express prohibition nor an express grant of authority in the
Constitution for Congress to delegate to regional or local legislative bodies the power
to create local government units. However, under its plenary legislative powers,
Congress can delegate to local legislative bodies the power to create local government
units, subject to reasonable standards and provided no conflict arises with any
provision of the Constitution. In fact, Congress has delegated to provincial boards,
and city and municipal councils, the power to create barangays within their
jurisdiction,25 subject to compliance with the criteria established in the Local
Government Code, and the plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government Code, "only x x x an Act of
Congress" can create provinces, cities or municipalities.261avvphi1
Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional
Assembly the power to create provinces, cities, municipalities and barangays within
the ARMM. Congress made the delegation under its plenary legislative powers
because the power to create local government units is not one of the express
legislative powers granted by the Constitution to regional legislative bodies.27 In the
present case, the question arises whether the delegation to the ARMM Regional
Assembly of the power to create provinces, cities, municipalities and barangays
conflicts with any provision of the Constitution.
There is no provision in the Constitution that conflicts with the delegation to regional
legislative bodies of the power to create municipalities and barangays, provided
Section 10, Article X of the Constitution is followed. However, the creation of
provinces and cities is another matter. Section 5 (3), Article VI of the Constitution
provides, "Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative" in the House of Representatives.
Similarly, Section 3 of the Ordinance appended to the Constitution provides, "Any
province that may hereafter be created, or any city whose population may hereafter
increase to more than two hundred fifty thousand shall be entitled in the immediately
following election to at least one Member x x x."

Clearly, a province cannot be created without a legislative district because it will

violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the
Ordinance appended to the Constitution. For the same reason, a city with a
population of 250,000 or more cannot also be created without a legislative district.
Thus, the power to create a province, or a city with a population of 250,000 or more,
requires also the power to create a legislative district. Even the creation of a city with
a population of less than 250,000 involves the power to create a legislative district
because once the citys population reaches 250,000, the city automatically becomes
entitled to one representative under Section 5 (3), Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a
province or city inherently involves the power to create a legislative district.

allowable membership or in its incumbent membership through the creation of

legislative districts must be embodied in a national law. Only Congress can enact such
a law. It would be anomalous for regional or local legislative bodies to create or
reapportion legislative districts for a national legislature like Congress. An inferior
legislative body, created by a superior legislative body, cannot change the
membership of the superior legislative body.

For Congress to delegate validly the power to create a province or city, it must also
validly delegate at the same time the power to create a legislative district. The
threshold issue then is, can Congress validly delegate to the ARMM Regional Assembly
the power to create legislative districts for the House of Representatives? The answer
is in the negative.

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:

Legislative Districts are Created or Reapportioned

Only by an Act of Congress

(2) Creation of sources of revenues;

Under the present Constitution, as well as in past28 Constitutions, the power to

increase the allowable membership in the House of Representatives, and to
reapportion legislative districts, is vested exclusively in Congress. 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.
xxxx
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact,
and adjacent territory. Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative.
(4) Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this
section. (Emphasis supplied)
Section 5 (1), Article VI of the Constitution vests in Congress the power to increase,
through a law, the allowable membership in the House of Representatives. Section 5
(4) empowers Congress to reapportion legislative districts. The power to reapportion
legislative districts necessarily includes the power to create legislative districts out of
existing ones. Congress exercises these powers through a law that Congress itself
enacts, and not through a law that regional or local legislative bodies enact. The
allowable membership of the House of Representatives can be increased, and new
legislative districts of Congress can be created, only through a national law passed by
Congress. In Montejo v. COMELEC,29 we held that the "power of redistricting x x x is
traditionally regarded as part of the power (of Congress) to make laws," and thus is
vested exclusively in Congress.
This textual commitment to Congress of the exclusive power to create or reapportion
legislative districts is logical. Congress is a national legislature and any increase in its

The creation of the ARMM, and the grant of legislative powers to its Regional
Assembly under its organic act, did not divest Congress of its exclusive authority to
create legislative districts. This is clear from the Constitution and the ARMM Organic
Act, as amended. Thus, Section 20, Article X of the Constitution provides:

(1) Administrative organization;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.
Nothing in Section 20, Article X of the Constitution authorizes autonomous regions,
expressly or impliedly, to create or reapportion legislative districts for Congress.
On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act,
provides, "The Regional Assembly may exercise legislative power x x x except on the
following matters: x x x (k) National elections. x x x." Since the ARMM Regional
Assembly has no legislative power to enact laws relating to national elections, it
cannot create a legislative district whose representative is elected in national
elections. Whenever Congress enacts a law creating a legislative district, the first
representative is always elected in the "next national elections" from the effectivity of
the law.30
Indeed, the office of a legislative district representative to Congress is a national
office, and its occupant, a Member of the House of Representatives, is a national
official.31 It would be incongruous for a regional legislative body like the ARMM
Regional Assembly to create a national office when its legislative powers extend only
to its regional territory. The office of a district representative is maintained by national
funds and the salary of its occupant is paid out of national funds. It is a self-evident
inherent limitation on the legislative powers of every local or regional legislative body
that it can only create local or regional offices, respectively, and it can never create a
national office.

To allow the ARMM Regional Assembly to create a national office is to allow its
legislative powers to operate outside the ARMMs territorial jurisdiction. This violates
Section 20, Article X of the Constitution which expressly limits the coverage of the
Regional Assemblys legislative powers "[w]ithin its territorial jurisdiction x x x."
The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the
exclusive nature of Congress power to create or reapportion legislative districts by
abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA
Act 201 provides that:
Except as may be provided by national law, the existing legislative district, which
includes Cotabato City as a part thereof, shall remain. (Emphasis supplied)
However, a province cannot legally be created without a legislative district because
the Constitution mandates that "each province shall have at least one representative."
Thus, the creation of the Province of Shariff Kabunsuan without a legislative district is
unconstitutional.
Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the
Constitution, which provides:
Each legislative district shall comprise, as far as practicable, contiguous, compact, and
adjacent territory. Each city with a population of at least two hundred fifty thousand,
or each province, shall have at least one representative. (Emphasis supplied)
and Section 3 of the Ordinance appended to the Constitution, which states:
Any province that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be entitled in the
immediately following election to at least one Member or such number of Members as
it may be entitled to on the basis of the number of its inhabitants and according to
the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution.
The number of Members apportioned to the province out of which such new province
was created or where the city, whose population has so increased, is geographically
located shall be correspondingly adjusted by the Commission on Elections but such
adjustment shall not be made within one hundred and twenty days before the
election. (Emphasis supplied)
serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on
29 October 2006, is automatically entitled to one member in the House of
Representatives in the 14 May 2007 elections. As further support for her stance,
petitioner invokes the statement in Felwa that "when a province is created by statute,
the corresponding representative district comes into existence neither by authority of
that statute which cannot provide otherwise nor by apportionment, but by
operation of the Constitution, without a reapportionment."
The contention has no merit.
First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA
4695), creating the provinces of Benguet, Mountain Province, Ifugao, and KalingaApayao and providing for congressional representation in the old and new provinces,
was unconstitutional for "creati[ng] congressional districts without the apportionment
provided in the Constitution." The Court answered in the negative, thus:
The Constitution ordains:
"The House of Representatives shall be composed of not more than one hundred and
twenty Members who shall be apportioned among the several provinces as nearly as

may be according to the number of their respective inhabitants, but each province
shall have at least one Member. The Congress shall by law make an apportionment
within three years after the return of every enumeration, and not otherwise. Until
such apportionment shall have been made, the House of Representatives shall have
the same number of Members as that fixed by law for the National Assembly, who
shall be elected by the qualified electors from the present Assembly districts. Each
representative district shall comprise as far as practicable, contiguous and compact
territory."
Pursuant to this Section, a representative district may come into existence: (a)
indirectly, through the creation of a province for "each province shall have at least
one member" in the House of Representatives; or (b) by direct creation of several
representative districts within a province. The requirements concerning the
apportionment of representative districts and the territory thereof refer only to the
second method of creation of representative districts, and do not apply to those
incidental to the creation of provinces, under the first method. This is deducible, not
only from the general tenor of the provision above quoted, but, also, from the fact
that the apportionment therein alluded to refers to that which is made by an Act of
Congress. Indeed, when a province is created by statute, the corresponding
representative district, comes into existence neither by authority of that statute
which cannot provide otherwise nor by apportionment, but by operation of the
Constitution, without a reapportionment.
There is no constitutional limitation as to the time when, territory of, or other
conditions under which a province may be created, except, perhaps, if the
consequence thereof were to exceed the maximum of 120 representative districts
prescribed in the Constitution, which is not the effect of the legislation under
consideration. As a matter of fact, provinces have been created or subdivided into
other provinces, with the consequent creation of additional representative districts,
without complying with the aforementioned requirements.32 (Emphasis supplied)
Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly
created legislative districts "indirectly" through a special law enacted by Congress
creating a province and (2) the creation of the legislative districts will not result in
breaching the maximum number of legislative districts provided under the 1935
Constitution. Felwa does not apply to the present case because in Felwa the new
provinces were created by a national law enacted by Congress itself. Here, the new
province was created merely by a regional law enacted by the ARMM Regional
Assembly.
What Felwa teaches is that the creation of a legislative district by Congress does not
emanate alone from Congress power to reapportion legislative districts, but also from
Congress power to create provinces which cannot be created without a legislative
district. Thus, when a province is created, a legislative district is created by operation
of the Constitution because the Constitution provides that "each province shall have at
least one representative" in the House of Representatives. This does not detract from
the constitutional principle that the power to create legislative districts belongs
exclusively to Congress. It merely prevents any other legislative body, except
Congress, from creating provinces because for a legislative body to create a province
such legislative body must have the power to create legislative districts. In short, only
an act of Congress can trigger the creation of a legislative district by operation of the
Constitution. Thus, only Congress has the power to create, or trigger the creation of,
a legislative district.
Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff
Kabunsuan upon its creation, this will leave Cotabato City as the lone component of
the first legislative district of Maguindanao. However, Cotabato City cannot constitute
a legislative district by itself because as of the census taken in 2000, it had a

population of only 163,849. To constitute Cotabato City alone as the surviving first
legislative district of Maguindanao will violate Section 5 (3), Article VI of the
Constitution which requires that "[E]ach city with a population of at least two hundred
fifty thousand x x x, shall have at least one representative."
Second. Semas theory also undermines the composition and independence of the
House of Representatives. Under Section 19,33 Article VI of RA 9054, the ARMM
Regional Assembly can create provinces and cities within the ARMM with or without
regard to the criteria fixed in Section 461 of RA 7160, namely: minimum annual
income of P20,000,000, and minimum contiguous territory of 2,000 square kilometers
or minimum population of 250,000.34 The following scenarios thus become distinct
possibilities:
(1) An inferior legislative body like the ARMM Regional Assembly can create 100 or
more provinces and thus increase the membership of a superior legislative body, the
House of Representatives, beyond the maximum limit of 250 fixed in the Constitution
(unless a national law provides otherwise);
(2) The proportional representation in the House of Representatives based on one
representative for at least every 250,000 residents will be negated because the ARMM
Regional Assembly need not comply with the requirement in Section 461(a)(ii) of RA
7160 that every province created must have a population of at least 250,000; and
(3) Representatives from the ARMM provinces can become the majority in the House
of Representatives through the ARMM Regional Assemblys continuous creation of
provinces or cities within the ARMM.
The following exchange during the oral arguments of the petition in G.R. No. 177597
highlights the absurdity of Semas position that the ARMM Regional Assembly can
create provinces:
Justice Carpio:
So, you mean to say [a] Local Government can create legislative district[s] and pack
Congress with their own representatives [?]
Atty. Vistan II:35
Yes, Your Honor, because the Constitution allows that.
Justice Carpio:
So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x
x and, therefore, they can have thirty-five (35) new representatives in the House of
Representatives without Congress agreeing to it, is that what you are saying? That
can be done, under your theory[?]
Atty. Vistan II:
Yes, Your Honor, under the correct factual circumstances.
Justice Carpio:
Under your theory, the ARMM legislature can create thirty-five (35) new provinces,
there may be x x x [only] one hundred thousand (100,000) [population], x x x, and
they will each have one representative x x x to Congress without any national law, is
that what you are saying?

Atty. Vistan II:

Without law passed by Congress, yes, Your Honor, that is what we are saying.
xxxx
Justice Carpio:
So, they can also create one thousand (1000) new provinces, sen[d] one thousand
(1000) representatives to the House of Representatives without a national law[,] that
is legally possible, correct?
Atty. Vistan II:
Yes, Your Honor.36 (Emphasis supplied)
Neither the framers of the 1987 Constitution in adopting the provisions in Article X on
regional autonomy,37 nor Congress in enacting RA 9054, envisioned or intended
these disastrous consequences that certainly would wreck the tri-branch system of
government under our Constitution. Clearly, the power to create or reapportion
legislative districts cannot be delegated by Congress but must be exercised by
Congress itself. Even the ARMM Regional Assembly recognizes this.
The Constitution empowered Congress to create or reapportion legislative districts,
not the regional assemblies. Section 3 of the Ordinance to the Constitution which
states, "[A]ny province that may hereafter be created x x x shall be entitled in the
immediately following election to at least one Member," refers to a province created
by Congress itself through a national law. The reason is that the creation of a
province increases the actual membership of the House of Representatives, an
increase that only Congress can decide. Incidentally, in the present 14th Congress,
there are 21938 district representatives out of the maximum 250 seats in the House
of Representatives. Since party-list members shall constitute 20 percent of total
membership of the House, there should at least be 50 party-list seats available in
every election in case 50 party-list candidates are proclaimed winners. This leaves
only 200 seats for district representatives, much less than the 219 incumbent district
representatives. Thus, there is a need now for Congress to increase by law the
allowable membership of the House, even before Congress can create new provinces.
It is axiomatic that organic acts of autonomous regions cannot prevail over the
Constitution. Section 20, Article X of the Constitution expressly provides that the
legislative powers of regional assemblies are limited "[w]ithin its territorial jurisdiction
and subject to the provisions of the Constitution and national laws, x x x." The
Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM Government
is established "within the framework of the Constitution." This follows Section 15,
Article X of the Constitution which mandates that the ARMM "shall be created x x x
within the framework of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines."
The present case involves the creation of a local government unit that necessarily
involves also the creation of a legislative district. The Court will not pass upon the
constitutionality of the creation of municipalities and barangays that does not comply
with the criteria established in Section 461 of RA 7160, as mandated in Section 10,
Article X of the Constitution, because the creation of such municipalities and
barangays does not involve the creation of legislative districts. We leave the resolution
of this issue to an appropriate case.
In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the
ARMM Regional Assembly the power to create provinces and cities, is void for being

contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as

well as Section 3 of the Ordinance appended to the Constitution. Only Congress can
create provinces and cities because the creation of provinces and cities necessarily
includes the creation of legislative districts, a power only Congress can exercise under
Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to
the Constitution. The ARMM Regional Assembly cannot create a province without a
legislative district because the Constitution mandates that every province shall have a
legislative district. Moreover, the ARMM Regional Assembly cannot enact a law
creating a national office like the office of a district representative of Congress
because the legislative powers of the ARMM Regional Assembly operate only within its
territorial jurisdiction as provided in Section 20, Article X of the Constitution. Thus, we
rule that MMA Act 201, enacted by the ARMM Regional Assembly and creating the
Province of Shariff Kabunsuan, is void.
Resolution No. 7902 Complies with the Constitution
Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic
and legislative district of the First District of Maguindanao with Cotabato City, is valid
as it merely complies with Section 5 of Article VI and Section 20 of Article X of the
Constitution, as well as Section 1 of the Ordinance appended to the Constitution.
WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054
UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the Autonomous
Region in Muslim Mindanao the power to create provinces and cities. Thus, we declare
VOID Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff
Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID.

PROVINCE OF NORTH COTABATO V. GRP (2008) | CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process. While the facts surrounding this controversy center on
the armed conflict in Mindanao between the government and the Moro Islamic
Liberation Front (MILF), the legal issue involved has a bearing on all areas in the
country where there has been a long-standing armed conflict. Yet again, the Court is
tasked to perform a delicate balancing act. It must uncompromisingly delineate the
bounds within which the President may lawfully exercise her discretion, but it must do
so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of
action vested by that same Constitution in the Chief Executive precisely to enable her
to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the
MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic basis
towards Marxist-Maoist orientations.1
The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases before
the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining
Order enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of
several prior agreements between the two parties beginning in 1996, when the GRPMILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels
signed the Agreement on General Cessation of Hostilities. The following year, they
signed the General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by
stating that the same contained, among others, the commitment of the parties to
pursue peace negotiations, protect and respect human rights, negotiate with sincerity
in the resolution and pacific settlement of the conflict, and refrain from the use of
threat or force to attain undue advantage while the peace negotiations on the
substantive agenda are on-going.2
Early on, however, it was evident that there was not going to be any smooth sailing in
the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF
attacked a number of municipalities in Central Mindanao and, in March 2000, it took
control of the town hall of Kauswagan, Lanao del Norte.3 In response, then President
Joseph Estrada declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive
against the MILF was suspended and the government sought a resumption of the
peace talks. The MILF, according to a leading MILF member, initially responded with
deep reservation, but when President Arroyo asked the Government of Malaysia
through Prime Minister Mahathir Mohammad to help convince the MILF to return to
the negotiating table, the MILF convened its Central Committee to seriously discuss
the matter and, eventually, decided to meet with the GRP.4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated
by the Malaysian government, the parties signing on the same date the Agreement on
the General Framework for the Resumption of Peace Talks Between the GRP and the
MILF. The MILF thereafter suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following aspects
of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain
Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement
2001 simply agreed "that the same be discussed further by the Parties in their next
meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001
which ended with the signing of the Implementing Guidelines on the Security Aspect
of the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This
was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed on May 7,
2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence
between government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and
he was replaced by Al Haj Murad, who was then the chief peace negotiator of the
MILF. Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever embodied
in an instrument - the MOA-AD which is assailed principally by the present petitions
bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7
and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with
Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining
Order.9 Invoking the right to information on matters of public concern, petitioners
seek to compel respondents to disclose and furnish them the complete and official
copies of the MOA-AD including its attachments, and to prohibit the slated signing of
the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding
of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD
be declared unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No. 183752, also
for Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso
Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray
for similar injunctive reliefs. Petitioners herein moreover pray that the City of
Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro
Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order
commanding and directing public respondents and their agents to cease and desist

from formally signing the MOA-AD.13 The Court also required the Solicitor General to
submit to the Court and petitioners the official copy of the final draft of the MOAAD,14 to which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory
Relief, docketed as G.R. No. 183893, praying that respondents be enjoined from
signing the MOA-AD or, if the same had already been signed, from implementing the
same, and that the MOA-AD be declared unconstitutional. Petitioners herein
additionally implead Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor
Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18
of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951.
They pray, inter alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition for Prohibition,20 docketed as G.R. No. 183962, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and
executing the MOA-AD and or any other agreement derived therefrom or similar
thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator
Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the
City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22
and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,23
Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod
member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis,
all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the
Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their
respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners submitted
their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the
Executive Department shall thoroughly review the MOA-AD and pursue further
negotiations to address the issues hurled against it, and thus moved to dismiss the
cases. In the succeeding exchange of pleadings, respondents' motion was met with
vigorous opposition from petitioners.

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel
committed grave abuse of discretion amounting to lack or excess of jurisdiction when
it negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of public
concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of
all its transactions involving public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT
CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines
would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state,
or a juridical, territorial or political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES
RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments
of the Government of the Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most
of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled
the following principal issues:

As a necessary backdrop to the consideration of the objections raised in the subject

five petitions and six petitions-in-intervention against the MOA-AD, as well as the two
comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the
MOA.

1. Whether the petitions have become moot and academic

The MOA-AD identifies the Parties to it as the GRP and the MILF.

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of Agreement (MOA); and

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four
earlier agreements between the GRP and MILF, but also two agreements between the
GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on
the Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996
during the administration of President Fidel Ramos.

(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with the
finalization of the draft;

The MOA-AD also identifies as TOR two local statutes - the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples
Rights Act (IPRA),26 and several international law instruments - the ILO Convention
No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in
relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN
Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights
entrenchment emanating from the regime of dar-ul-mua'hada (or territory under
compact) and dar-ul-sulh (or territory under peace agreement) that partakes the
nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and
dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws
held sway, while the second denoted those lands where Muslims were persecuted or
where Muslim laws were outlawed or ineffective.27 This way of viewing the world,
however, became more complex through the centuries as the Islamic world became
part of the international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States
and inter-governmental organizations, the classical division of the world into dar-ulIslam and dar-ul-harb eventually lost its meaning. New terms were drawn up to
describe novel ways of perceiving non-Muslim territories. For instance, areas like darul-mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to countries
which, though under a secular regime, maintained peaceful and cooperative relations
with Muslim States, having been bound to each other by treaty or agreement. Dar-ulaman (land of order), on the other hand, referred to countries which, though not
bound by treaty with Muslim States, maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the regime of
dar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements between the
MILF and the Philippine government - the Philippines being the land of compact and
peace agreement - that partake of the nature of a treaty device, "treaty" being
broadly defined as "any solemn agreement in writing that sets out understandings,
obligations, and benefits for both parties which provides for a framework that
elaborates the principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants
of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at
the time of conquest or colonization, and their descendants whether mixed or of full
blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes
not only "Moros" as traditionally understood even by Muslims,31 but all indigenous
peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of
choice of indigenous peoples shall be respected. What this freedom of choice consists
in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of

which is vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge that ancestral domain does
not form part of the public domain.33
The Bangsamoro people are acknowledged as having the right to self-governance,
which right is said to be rooted on ancestral territoriality exercised originally under the
suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The
sultanates were described as states or "karajaan/kadatuan" resembling a body politic
endowed with all the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on
the past suzerain authority of the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and, specifically in the case of
the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of whom was
supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with
defined territory and with a system of government having entered into treaties of
amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of
that territory, particularly those known as Indians. In Canada, each of these
indigenous peoples is equally entitled to be called "First Nation," hence, all of them
are usually described collectively by the plural "First Nations."36 To that extent, the
MOA-AD, by identifying the Bangsamoro people as "the First Nation" - suggesting its
exclusive entitlement to that designation - departs from the Canadian usage of the
term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE)
to which it grants the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as
the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and
the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region.38
More specifically, the core of the BJE is defined as the present geographic area of the
ARMM - thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu,
Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each
of these areas is to be subjected to a plebiscite to be held on different dates, years
apart from each other. Thus, Category A areas are to be subjected to a plebiscite not
later than twelve (12) months following the signing of the MOA-AD.40 Category B
areas, also called "Special Intervention Areas," on the other hand, are to be subjected
to a plebiscite twenty-five (25) years from the signing of a separate agreement - the
Comprehensive Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all
natural resources within its "internal waters," defined as extending fifteen (15)
kilometers from the coastline of the BJE area;42 that the BJE shall also have
"territorial waters," which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorial waters, the BJE and the "Central
Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority
and management over all natural resources.43 Notably, the jurisdiction over the
internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through
production sharing and economic cooperation agreement.44 The activities which the
Parties are allowed to conduct on the territorial waters are enumerated, among which
are the exploration and utilization of natural resources, regulation of shipping and
fishing activities, and the enforcement of police and safety measures.45 There is no
similar provision on the sharing of minerals and allowed activities with respect to the
internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and
trade relations with foreign countries and shall have the option to establish trade
missions in those countries. Such relationships and understandings, however, are not
to include aggression against the GRP. The BJE may also enter into environmental
cooperation agreements.46
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to "take necessary steps to
ensure the BJE's participation in international meetings and events" like those of the
ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate
in Philippine official missions and delegations for the negotiation of border agreements
or protocols for environmental protection and equitable sharing of incomes and
revenues involving the bodies of water adjacent to or between the islands forming
part of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction
and control thereon is to be vested in the BJE "as the party having control within its
territorial jurisdiction." This right carries the proviso that, "in times of national
emergency, when public interest so requires," the Central Government may, for a
fixed period and under reasonable terms as may be agreed upon by both Parties,
assume or direct the operation of such resources.48
The sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising
from any unjust dispossession of their territorial and proprietary rights, customary
land tenures, or their marginalization shall be acknowledged. Whenever restoration is
no longer possible, reparation is to be in such form as mutually determined by the
Parties.50
The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure instruments
granted by the Philippine Government, including those issued by the present
ARMM.51

D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the "details for the effective enforcement" and "the mechanisms and
modalities for the actual implementation" of the MOA-AD. The MOA-AD explicitly
provides that the participation of the third party shall not in any way affect the status
of the relationship between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as
"associative," characterized by shared authority and responsibility. And it states that
the structure of governance is to be based on executive, legislative, judicial, and
administrative institutions with defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal
framework" shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact. As will be discussed later, much of the present controversy
hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions
inclusive of civil service, electoral, financial and banking, education, legislation, legal,
economic, police and internal security force, judicial system and correctional
institutions, the details of which shall be discussed in the negotiation of the
comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo
Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP
and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD
identifies the signatories as "the representatives of the Parties," meaning the GRP and
MILF themselves, and not merely of the negotiating panels.53 In addition, the
signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin
Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY"
Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC)
Secretary General and Special Envoy for Peace Process in Southern Philippines, and
SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of
RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all
of whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps
of the provinces, municipalities, and barangays under Categories A and B earlier
mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
decline to issue advisory opinions or to resolve hypothetical
mere academic questions.55 The limitation of the power of
cases and controversies defines the role assigned to the

controversies.54 Courts
or feigned problems, or
judicial review to actual
judiciary in a tripartite

allocation of power, to assure that the courts will not intrude into areas committed to
the other branches of government.56

all outstanding issues on the Comprehensive Compact within fifteen (15) months from
the signing of the MOA-AD.

An actual case or controversy involves a conflict of legal rights, an assertion of

opposite legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. There must be a contrariety of legal
rights that can be interpreted and enforced on the basis of existing law and
jurisprudence.57 The Court can decide the constitutionality of an act or treaty only
when a proper case between opposing parties is submitted for judicial
determination.58

xxxx

Related to the requirement of an actual case or controversy is the requirement of

ripeness. A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it.59 For a case to be considered
ripe for adjudication, it is a prerequisite that something had then been accomplished
or performed by either branch before a court may come into the picture,60 and the
petitioner must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action.61 He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of.62

GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual implementation of
this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such
steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework with due regard to nonderogation of prior agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.

The Solicitor General argues that there is no justiciable controversy that is ripe for
judicial review in the present petitions, reasoning that

Concrete acts under the MOA-AD are not necessary to render the present controversy
ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:

The unsigned MOA-AD is simply a list of consensus points subject to further

negotiations and legislative enactments as well as constitutional processes aimed at
attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a
proposal that does not automatically create legally demandable rights and obligations
until the list of operative acts required have been duly complied with. x x x

x x x [B]y the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular violation of the Constitution
and/or the law is enough to awaken judicial duty.

xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no
authority to pass upon issues based on hypothetical or feigned constitutional problems
or interests with no concrete bases. Considering the preliminary character of the
MOA-AD, there are no concrete acts that could possibly violate petitioners' and
intervenors' rights since the acts complained of are mere contemplated steps toward
the formulation of a final peace agreement. Plainly, petitioners and intervenors'
perceived injury, if at all, is merely imaginary and illusory apart from being unfounded
and based on mere conjectures. (Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the Government
stipulates to conduct and deliver, using all possible legal measures, within twelve (12)
months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the
"Annex"). The Annex constitutes an integral part of this framework agreement.
Toward this end, the Parties shall endeavor to complete the negotiations and resolve

xxxx
By the same token, when an act of the President, who in our constitutional scheme is
a coequal of Congress, is seriously alleged to have infringed the Constitution and the
laws x x x settling the dispute becomes the duty and the responsibility of the
courts.66
In Santa Fe Independent School District v. Doe,67 the United States Supreme Court
held that the challenge to the constitutionality of the school's policy allowing studentled prayers and speeches before games was ripe for adjudication, even if no public
prayer had yet been led under the policy, because the policy was being challenged as
unconstitutional on its face.68
That the law or act in question is not yet effective does not negate ripeness. For
example, in New York v. United States,69 decided in 1992, the United States Supreme
Court held that the action by the State of New York challenging the provisions of the
Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the
questioned provision was not to take effect until January 1, 1996, because the parties
agreed that New York had to take immediate action to avoid the provision's
consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted,
in the case of certiorari, or is proceeding, in the case of prohibition, without or in
excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.72 Mandamus is a remedy granted by law when any tribunal,
corporation, board, officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use or enjoyment of a right or office to which

such other is entitled.73 Certiorari, Mandamus and Prohibition are appropriate

remedies to raise constitutional issues and to review and/or prohibit/nullify, when
proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O.
No. 3), issued on February 28, 2001.75 The said executive order requires that "[t]he
government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted
the terms of the MOA-AD without consulting the local government units or
communities affected, nor informing them of the proceedings. As will be discussed in
greater detail later, such omission, by itself, constitutes a departure by respondents
from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring
amendments to the existing legal framework shall come into force upon the signing of
a Comprehensive Compact and upon effecting the necessary changes to the legal
framework," implying an amendment of the Constitution to accommodate the MOAAD. This stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority. Again, these
points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the
Constitution and statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication
exists. When an act of a branch of government is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions."78
Because constitutional cases are often public actions in which the relief sought is likely
to affect other persons, a preliminary question frequently arises as to this interest in
the constitutional question raised.79
When suing as a citizen, the person complaining must allege that he has been or is
about to be denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute or act
complained of.80 When the issue concerns a public right, it is sufficient that the
petitioner is a citizen and has an interest in the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that public funds are
illegally disbursed or deflected to an illegal purpose, or that there is a wastage of
public funds through the enforcement of an invalid or unconstitutional law.82 The
Court retains discretion whether or not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive that injures
the institution of Congress causes a derivative but nonetheless substantial injury that
can be questioned by legislators. A member of the House of Representatives has

standing to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.84
An organization may be granted standing to assert the rights of its members,85 but
the mere invocation by the Integrated Bar of the Philippines or any member of the
legal profession of the duty to preserve the rule of law does not suffice to clothe it
with standing.86
As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of facts that
satisfy the requirements of the law authorizing intervention,88 such as a legal interest
in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus
standi, given the liberal attitude it has exercised, highlighted in the case of David v.
Macapagal-Arroyo,89 where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of transcendental
importance deserving the attention of the Court in view of their seriousness, novelty
and weight as precedents.90 The Court's forbearing stance on locus standi on issues
involving constitutional issues has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within
the limits of the Constitution and the laws and have not abused the discretion given
them, has brushed aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591)
Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of
Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view
of the direct and substantial injury that they, as LGUs, would suffer as their territories,
whether in whole or in part, are to be included in the intended domain of the BJE.
These petitioners allege that they did not vote for their inclusion in the ARMM which
would be expanded to form the BJE territory. Petitioners' legal standing is thus
beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel
III would have no standing as citizens and taxpayers for their failure to specify that
they would be denied some right or privilege or there would be wastage of public
funds. The fact that they are a former Senator, an incumbent mayor of Makati City,
and a resident of Cagayan de Oro, respectively, is of no consequence. Considering
their invocation of the transcendental importance of the issues at hand, however, the
Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,
assert that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can
be given legal standing. Their allegation that the issues involved in these petitions are
of "undeniable transcendental importance" clothes them with added basis for their
personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a
member of the Senate and a citizen to enforce compliance by respondents of the
public's constitutional right to be informed of the MOA-AD, as well as on a genuine
legal interest in the matter in litigation, or in the success or failure of either of the
parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd
district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez,
et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao,
as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City;
and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the
present petitions. Just the same, the Court exercises its discretion to relax the
procedural technicality on locus standi given the paramount public interest in the
issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development,
an advocacy group for justice and the attainment of peace and prosperity in Muslim
Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government
organization of Muslim lawyers, allege that they stand to be benefited or prejudiced,
as the case may be, in the resolution of the petitions concerning the MOA-AD, and
prays for the denial of the petitions on the grounds therein stated. Such legal interest
suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA."92
In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic"
principle not being a magical formula that automatically dissuades courts in resolving
a case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a
grave violation of the Constitution;95 (b) the situation is of exceptional character and
paramount public interest is involved;96 (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;97 and
(d) the case is capable of repetition yet evading review.98
Another exclusionary circumstance that may be considered is where there is a
voluntary cessation of the activity complained of by the defendant or doer. Thus, once
a suit is filed and the doer voluntarily ceases the challenged conduct, it does not
automatically deprive the tribunal of power to hear and determine the case and does
not render the case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust them into the
domain of judicial review. The grounds cited above in David are just as applicable in
the present cases as they were, not only in David, but also in Province of Batangas v.
Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the
merits, supervening events that would ordinarily have rendered the same moot
notwithstanding.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list
of consensus points," especially given its nomenclature, the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the
creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework
for certain provisions of the MOA-AD to take effect. Consequently, the present
petitions are not confined to the terms and provisions of the MOA-AD, but to other
on-going and future negotiations and agreements necessary for its realization. The
petitions have not, therefore, been rendered moot and academic simply by the public
disclosure of the MOA-AD,102 the manifestation that it will not be signed as well as
the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the country's territory and the wide-ranging political
modifications of affected LGUs. The assertion that the MOA-AD is subject to further
legal enactments including possible Constitutional amendments more than ever
provides impetus for the Court to formulate controlling principles to guide the bench,
the bar, the public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on
issues which no longer legitimately constitute an actual case or controversy [as this]
will do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what
was assailed and eventually cancelled was a stand-alone government procurement
contract for a national broadband network involving a one-time contractual relation
between two parties-the government and a private foreign corporation. As the issues
therein involved specific government procurement policies and standard principles on
contracts, the majority opinion in Suplico found nothing exceptional therein, the
factual circumstances being peculiar only to the transactions and parties involved in
the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements
necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the
Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and
the Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008
to the Solicitor General, has stated that "no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD]," mootness will not set in in
light of the terms of the Tripoli Agreement 2001.

Petitions not mooted

Need to formulate principles-guidelines

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD

and the eventual dissolution of the GRP Peace Panel did not moot the present
petitions. It bears emphasis that the signing of the MOA-AD did not push through due
to the Court's issuance of a Temporary Restraining Order.

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to
carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in
any form, which could contain similar or significantly drastic provisions. While the
Court notes the word of the Executive Secretary that the government "is committed to
securing an agreement that is both constitutional and equitable because that is the
only way that long-lasting peace can be assured," it is minded to render a decision on

the merits in the present petitions to formulate controlling principles to guide the
bench, the bar, the public and, most especially, the government in negotiating with
the MILF regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of
"capable of repetition yet evading review" can override mootness, "provided the party
raising it in a proper case has been and/or continue to be prejudiced or damaged as a
direct result of their issuance." They contend that the Court must have jurisdiction
over the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court
exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a
petition for Injunction and Declaratory Relief, the Court will treat it as one for
Prohibition as it has far reaching implications and raises questions that need to be
resolved.105 At all events, the Court has jurisdiction over most if not the rest of the
petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark
cases.106 There is a reasonable expectation that petitioners, particularly the Provinces
of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be
subjected to the same problem in the future as respondents' actions are capable of
repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its annexes. Too,
intervenors have been furnished, or have procured for themselves, copies of the MOAAD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD
was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed the
MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public
concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right
to examine and inspect public records, a right which was eventually accorded
constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution
and the 1987 Constitution, has been recognized as a self-executory constitutional
right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access
to public records is predicated on the right of the people to acquire information on
matters of public concern since, undoubtedly, in a democracy, the pubic has a
legitimate interest in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nation's problems, nor a meaningful
democratic decision-making if they are denied access to information of general
interest. Information is needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed: "Maintaining the flow of such
information depends on protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation112 so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by the
people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public
concern114 faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court found that the regularity of
real estate transactions entered in the Register of Deeds,116 the need for adequate
notice to the public of the various laws,117 the civil service eligibility of a public
employee,118 the proper management of GSIS funds allegedly used to grant loans to
public officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the
identity of party-list nominees,121 among others, are matters of public concern.
Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving
as it does the sovereignty and territorial integrity of the State, which directly affects
the lives of the public at large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as to
the executory nature or commercial character of agreements, the Court has
categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading to the
consummation of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can
never exercise the right if no contract is consummated, and if one is consummated, it
may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes
fait accompli. This negates the State policy of full transparency on matters of public
concern, a situation which the framers of the Constitution could not have intended.
Such a requirement will prevent the citizenry from participating in the public

discussion of any proposed contract, effectively truncating a basic right enshrined in

the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full disclosure of all its transactions
involving public interest."122 (Emphasis and italics in the original)
Intended as a "splendid symmetry"123 to the right to information under the Bill of
Rights is the policy of public disclosure under Section 28, Article II of the Constitution
reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.124
The policy of full public disclosure enunciated in above-quoted Section 28
complements the right of access to information on matters of public concern found in
the Bill of Rights. The right to information guarantees the right of the people to
demand information, while Section 28 recognizes the duty of officialdom to give
information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the conduct
of public affairs in a genuinely open democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable by following such
policy.126 These provisions are vital to the exercise of the freedom of expression and
essential to hold public officials at all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of
course, the implementing law will have to be enacted by Congress, Mr. Presiding
Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on
the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I
get the Gentleman correctly as having said that this is not a self-executing provision?
It would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards on national interest
are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect
and Congress may provide for reasonable safeguards on the sole ground national
interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course,
Congress here may no longer pass a law revoking it, or if this is approved, revoking
this principle, which is inconsistent with this policy.129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the
passing of a statute. As Congress cannot revoke this principle, it is merely directed to
provide for "reasonable safeguards." The complete and effective exercise of the right

to information necessitates that its complementary provision on public disclosure

derive the same self-executory nature. Since both provisions go hand-in-hand, it is
absurd to say that the broader130 right to information on matters of public concern is
already enforceable while the correlative duty of the State to disclose its transactions
involving public interest is not enforceable until there is an enabling law. Respondents
cannot thus point to the absence of an implementing legislation as an excuse in not
effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's will.131
Envisioned to be corollary to the twin rights to information and disclosure is the
design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to
participate? Will the government provide feedback mechanisms so that the people can
participate and can react where the existing media facilities are not able to provide full
feedback mechanisms to the government? I suppose this will be part of the
government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public
officials but also network of private business o[r] community-based organizations that
will be reacting. As a matter of fact, we will put more credence or credibility on the
private network of volunteers and voluntary community-based organizations. So I do
not think we are afraid that there will be another OMA in the making.132 (Emphasis
supplied)
The imperative of a public consultation, as a species of the right to information, is
evident in the "marching orders" to respondents. The mechanics for the duty to
disclose information and to conduct public consultation regarding the peace agenda
and process is manifestly provided by E.O. No. 3.133 The preambulatory clause of
E.O. No. 3 declares that there is a need to further enhance the contribution of civil
society to the comprehensive peace process by institutionalizing the people's
participation.
One of the three underlying principles of the comprehensive peace process is that it
"should be community-based, reflecting the sentiments, values and principles
important to all Filipinos" and "shall be defined not by the government alone, nor by
the different contending groups only, but by all Filipinos as one community."134
Included as a component of the comprehensive peace process is consensus-building
and empowerment for peace, which includes "continuing consultations on both
national and local levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more
than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and

other peace partners to seek relevant information, comments, recommendations as

well as to render appropriate and timely reports on the progress of the comprehensive
peace process."137 E.O. No. 3 mandates the establishment of the NPF to be "the
principal forum for the PAPP to consult with and seek advi[c]e from the peace
advocates, peace partners and concerned sectors of society on both national and local
levels, on the implementation of the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building on peace agenda and
initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda,
as a corollary to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the
pertinent consultation. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to a
whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law and
discharge the functions within the authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to respondents'
retort in justifying the denial of petitioners' right to be consulted. Respondents' stance
manifests the manner by which they treat the salient provisions of E.O. No. 3 on
people's participation. Such disregard of the express mandate of the President is not
much different from superficial conduct toward token provisos that border on classic
lip service.140 It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable
under the premises. The argument defies sound reason when contrasted with E.O.
No. 3's explicit provisions on continuing consultation and dialogue on both national
and local levels. The executive order even recognizes the exercise of the public's right
even before the GRP makes its official recommendations or before the government
proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit
relevant advice, information, comments and recommendations from the people
through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in
view of their unqualified disclosure of the official copies of the final draft of the MOAAD. By unconditionally complying with the Court's August 4, 2008 Resolution, without
a prayer for the document's disclosure in camera, or without a manifestation that it
was complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a
State policy to "require all national agencies and offices to conduct periodic
consultations with appropriate local government units, non-governmental and people's
organizations, and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions"142 is well-taken. The LGC
chapter on intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites have been

provided, in accordance with the provisions of the Constitution.143 (Italics and

underscoring supplied)
In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy and abovequoted provision of the LGU apply only to national programs or projects which are to
be implemented in a particular local community. Among the programs and projects
covered are those that are critical to the environment and human ecology including
those that may call for the eviction of a particular group of people residing in the
locality where these will be implemented.145 The MOA-AD is one peculiar program
that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result to the diaspora
or displacement of a great number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs),
whose interests are represented herein by petitioner Lopez and are adversely affected
by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and
destinies.147 The MOA-AD, an instrument recognizing ancestral domain, failed to
justify its non-compliance with the clear-cut mechanisms ordained in said Act,148
which entails, among other things, the observance of the free and prior informed
consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise. The recognition of the ancestral domain is the raison
d'etre of the MOA-AD, without which all other stipulations or "consensus points"
necessarily must fail. In proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as one of the TOR of the
MOA-AD, respondents clearly transcended the boundaries of their authority. As it
seems, even the heart of the MOA-AD is still subject to necessary changes to the legal
framework. While paragraph 7 on Governance suspends the effectivity of all
provisions requiring changes to the legal framework, such clause is itself invalid, as
will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is
to remain democratic, with sovereignty residing in the people and all government
authority emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they
cannot all be accommodated under the present Constitution and laws. Respondents
have admitted as much in the oral arguments before this Court, and the MOA-AD
itself recognizes the need to amend the existing legal framework to render effective at
least some of its provisions. Respondents, nonetheless, counter that the MOA-AD is
free of any legal infirmity because any provisions therein which are inconsistent with
the present legal framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be considered later. For now,
the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE. Petitioners assert that the powers granted to the BJE
exceed those granted to any local government under present laws, and even go
beyond those of the present ARMM. Before assessing some of the specific powers that
would have been vested in the BJE, however, it would be useful to turn first to a

general idea that serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the MOA-AD
explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision,
however, that the MOA-AD most clearly uses it to describe the envisioned relationship
between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive compact. A
period of transition shall be established in a comprehensive peace compact specifying
the relationship between the Central Government and the BJE. (Emphasis and
underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined
more precisely in the still to be forged Comprehensive Compact. Nonetheless, given
that there is a concept of "association" in international law, and the MOA-AD - by its
inclusion of international law instruments in its TOR- placed itself in an international
legal context, that concept of association may be brought to bear in understanding
the use of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international status as
a state. Free associations represent a middle ground between integration and
independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated
States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of
the Pacific Islands,151 are associated states of the U.S. pursuant to a Compact of
Free Association. The currency in these countries is the U.S. dollar, indicating their
very close ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was confirmed by
the UN Security Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM
generally have the capacity to conduct foreign affairs in their own name and right,
such capacity extending to matters such as the law of the sea, marine resources,
trade, banking, postal, civil aviation, and cultural relations. The U.S. government,
when conducting its foreign affairs, is obligated to consult with the governments of
the Marshall Islands or the FSM on matters which it (U.S. government) regards as
relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of
U.S. territory. The U.S. government, moreover, has the option of establishing and
using military areas and facilities within these associated states and has the right to
bar the military personnel of any third country from having access to these territories
for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free

Association is a treaty which is subordinate to the associated nation's national

constitution, and each party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.-associated states
to the UN in 1990, the UN recognized that the American model of free association is
actually based on an underlying status of independence.152
In international practice, the "associated state" arrangement has usually been used as
a transitional device of former colonies on their way to full independence. Examples of
states that have passed through the status of associated states as a transitional phase
are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All
have since become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJE's capacity
to enter into economic and trade relations with foreign countries, the commitment of
the Central Government to ensure the BJE's participation in meetings and events in
the ASEAN and the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE's right to participate in
Philippine official missions bearing on negotiation of border agreements,
environmental protection, and sharing of revenues pertaining to the bodies of water
adjacent to or between the islands forming part of the ancestral domain, resembles
the right of the governments of FSM and the Marshall Islands to be consulted by the
U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to
vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws
as having an "associative" relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted by the Constitution to
any local or regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore,
already requires for its validity the amendment of constitutional provisions, specifically
the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines
are the provinces, cities, municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this Constitution
and the national sovereignty as well as territorial integrity of the Republic of the
Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with
the national government being fundamentally different from that of the ARMM.
Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in
the Montevideo Convention,154 namely, a permanent population, a defined territory,
a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it - which has betrayed itself by its use of the
concept of association - runs counter to the national sovereignty and territorial
integrity of the Republic.
The defining concept underlying the relationship between the national government
and the BJE being itself contrary to the present Constitution, it is not surprising that
many of the specific provisions of the MOA-AD on the formation and powers of the
BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the votes cast
by the constituent units in a plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting favorably in such plebiscite shall be
included in the autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term "autonomous region" in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph
2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the
ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion
in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan
and Tangkal - are automatically part of the BJE without need of another plebiscite, in
contrast to the areas under Categories A and B mentioned earlier in the overview.
That the present components of the ARMM and the above-mentioned municipalities
voted for inclusion therein in 2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because what these areas voted for
then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the
MOA-AD would require an amendment that would expand the above-quoted
provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of
said constitutional provision would not suffice, since any new law that might vest in
the BJE the powers found in the MOA-AD must, itself, comply with other provisions of
the Constitution. It would not do, for instance, to merely pass legislation vesting the
BJE with treaty-making power in order to accommodate paragraph 4 of the strand on
RESOURCES which states: "The BJE is free to enter into any economic cooperation
and trade relations with foreign countries: provided, however, that such relationships
and understandings do not include aggression against the Government of the Republic
of the Philippines x x x." Under our constitutional system, it is only the President who
has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of state, is regarded as
the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other states.
(Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision states: "The
State recognizes and promotes the rights of indigenous cultural communities within
the framework of national unity and development." (Underscoring supplied) An
associative arrangement does not uphold national unity. While there may be a
semblance of unity because of the associative ties between the BJE and the national
government, the act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for independence, is certainly
not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent
with prevailing statutory law, among which are R.A. No. 9054156 or the Organic Act
of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and
Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to
those who are natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or colonization of
its descendants whether mixed or of full blood. Spouses and their descendants are
classified as Bangsamoro. The freedom of choice of the Indigenous people shall be
respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of the

Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes

between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers to
Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political institutions."

6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and hunting
grounds;
9) Pictures and descriptive histories of traditional landmarks such as mountains,
rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the community.

Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By
paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in
the agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the
land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the
aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region."

e) Preparation of Maps. - On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter
map, complete with technical descriptions, and a description of the natural features
and landmarks embraced therein;

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:

g) Notice and Publication. - A copy of each document, including a translation in the

native language of the ICCs/IPs concerned shall be posted in a prominent place
therein for at least fifteen (15) days. A copy of the document shall also be posted at
the local, provincial and regional offices of the NCIP, and shall be published in a
newspaper of general circulation once a week for two (2) consecutive weeks to allow
other claimants to file opposition thereto within fifteen (15) days from date of such
publication: Provided, That in areas where no such newspaper exists, broadcasting in
a radio station will be a valid substitute: Provided, further, That mere posting shall be
deemed sufficient if both newspaper and radio station are not available;

SECTION 52. Delineation Process. - The identification and delineation of ancestral

domains shall be done in accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter may be
initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition
for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary

census and a report of investigation, shall be prepared by the Ancestral Domains
Office of the NCIP;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of
elders or community under oath, and other documents directly or indirectly attesting
to the possession or occupation of the area since time immemorial by such ICCs/IPs in
the concept of owners which shall be any one (1) of the following authentic
documents:

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the NCIP
endorsing a favorable action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral Domains Office shall
require the submission of additional evidence: Provided, That the Ancestral Domains
Office shall reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of rejection, the Ancestral
Domains Office shall give the applicant due notice, copy furnished all concerned,
containing the grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting claims among
ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office
shall cause the contending parties to meet and assist them in coming up with a
preliminary resolution of the conflict, without prejudice to its full adjudication
according to the section below.

1) Written accounts of the ICCs/IPs customs and traditions;

xxxx

2) Written accounts of the ICCs/IPs political structure and institution;

To remove all doubts about the irreconcilability of the MOA-AD with the present legal
system, a discussion of not only the Constitution and domestic statutes, but also of
international law is in order, for

c) Delineation Proper. - The official delineation of ancestral domain boundaries

including census of all community members therein, shall be immediately undertaken
by the Ancestral Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the community concerned
and shall at all times include genuine involvement and participation by the members
of the communities concerned;

3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning boundaries entered
into by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;

Article II, Section 2 of the Constitution states that the Philippines "adopts the
generally accepted principles of international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,158 held that the Universal Declaration of Human Rights is part of the law of
the land on account of which it ordered the release on bail of a detained alien of

Russian descent whose deportation order had not been executed even after two
years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.

choices and pursue economic, social and cultural development, citing that Quebec is
equitably represented in legislative, executive and judicial institutions within Canada,
even occupying prominent positions therein.

International law has long recognized the right to self-determination of "peoples,"

understood not merely as the entire population of a State but also a portion thereof.
In considering the question of whether the people of Quebec had a right to
unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE
SECESSION OF QUEBEC160 had occasion to acknowledge that "the right of a people
to self-determination is now so widely recognized in international conventions that the
principle has acquired a status beyond convention' and is considered a general
principle of international law."

The exceptional nature of the right of secession is further exemplified in the REPORT
OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
AALAND ISLANDS QUESTION.163 There, Sweden presented to the Council of the
League of Nations the question of whether the inhabitants of the Aaland Islands
should be authorized to determine by plebiscite if the archipelago should remain
under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council,
before resolving the question, appointed an International Committee composed of
three jurists to submit an opinion on the preliminary issue of whether the dispute
should, based on international law, be entirely left to the domestic jurisdiction of
Finland. The Committee stated the rule as follows:

Among the conventions referred to are the International Covenant on Civil and
Political Rights161 and the International Covenant on Economic, Social and Cultural
Rights162 which state, in Article 1 of both covenants, that all peoples, by virtue of the
right of self-determination, "freely determine their political status and freely pursue
their economic, social, and cultural development."
The people's right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made between the
right of internal and external self-determination. REFERENCE RE SECESSION OF
QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to selfdetermination of a people is normally fulfilled through internal self-determination - a
people's pursuit of its political, economic, social and cultural development within the
framework of an existing state. A right to external self-determination (which in this
case potentially takes the form of the assertion of a right to unilateral secession)
arises in only the most extreme of cases and, even then, under carefully defined
circumstances. x x x
External self-determination can be defined as in the following statement from the
Declaration on Friendly Relations, supra, as

x x x [I]n the absence of express provisions in international treaties, the right of

disposing of national territory is essentially an attribute of the sovereignty of every
State. Positive International Law does not recognize the right of national groups, as
such, to separate themselves from the State of which they form part by the simple
expression of a wish, any more than it recognizes the right of other States to claim
such a separation. Generally speaking, the grant or refusal of the right to a portion of
its population of determining its own political fate by plebiscite or by some other
method, is, exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning such a question,
under normal conditions therefore, bears upon a question which International Law
leaves entirely to the domestic jurisdiction of one of the States concerned. Any other
solution would amount to an infringement of sovereign rights of a State and would
involve the risk of creating difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term "State," but would also endanger the
interests of the international community. If this right is not possessed by a large or
small section of a nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis and underscoring
supplied)

x x x x (Emphasis, italics and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a
question which is left by international law to the domestic jurisdiction of Finland,
thereby applying the exception rather than the rule elucidated above. Its ground for
departing from the general rule, however, was a very narrow one, namely, the Aaland
Islands agitation originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the
legitimacy of the Finnish national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two
opposing forces. In light of these circumstances, Finland was not, during the relevant
time period, a "definitively constituted" sovereign state. The Committee, therefore,
found that Finland did not possess the right to withhold from a portion of its
population the option to separate itself - a right which sovereign nations generally
have with respect to their own populations.

The Canadian Court went on to discuss the exceptional cases in which the right to
external self-determination can arise, namely, where a people is under colonial rule, is
subject to foreign domination or exploitation outside a colonial context, and - less
definitely but asserted by a number of commentators - is blocked from the meaningful
exercise of its right to internal self-determination. The Court ultimately held that the
population of Quebec had no right to secession, as the same is not under colonial rule
or foreign domination, nor is it being deprived of the freedom to make political

Turning now to the more specific category of indigenous peoples, this term has been
used, in scholarship as well as international, regional, and state practices, to refer to
groups with distinct cultures, histories, and connections to land (spiritual and
otherwise) that have been forcibly incorporated into a larger governing society. These
groups are regarded as "indigenous" since they are the living descendants of preinvasion inhabitants of lands now dominated by others. Otherwise stated, indigenous
peoples, nations, or communities are culturally distinctive groups that find themselves

The establishment of a sovereign and independent State, the free association or

integration with an independent State or the emergence into any other political status
freely determined by a people constitute modes of implementing the right of selfdetermination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within a
framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to selfdetermination also contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign states.

engulfed by settler societies born of the forces of empire and conquest.164 Examples
of groups who have been regarded as indigenous peoples are the Maori of New
Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states
do not have a general right to independence or secession from those states under
international law,165 but they do have rights amounting to what was discussed above
as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted
the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP)
through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines
being included among those in favor, and the four voting against being Australia,
Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of
indigenous peoples to self-determination, encompassing the right to autonomy or selfgovernment, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.

(e) Any form of propaganda designed to promote or incite racial or ethnic

discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of
their economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and social
security.
2. States shall take effective measures and, where appropriate, special measures to
ensure continuing improvement of their economic and social conditions. Particular
attention shall be paid to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.

Article 4

2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they have otherwise acquired.

Indigenous peoples, in exercising their right to self-determination, have the right to

autonomy or self-government in matters relating to their internal and local affairs, as
well as ways and means for financing their autonomous functions.

3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.

Article 5

Article 30

Indigenous peoples have the right to maintain and strengthen their distinct political,
legal, economic, social and cultural institutions, while retaining their right to
participate fully, if they so choose, in the political, economic, social and cultural life of
the State.

1. Military activities shall not take place in the lands or territories of indigenous
peoples, unless justified by a relevant public interest or otherwise freely agreed with
or requested by the indigenous peoples concerned.

Self-government, as used in international legal discourse pertaining to indigenous

peoples, has been understood as equivalent to "internal self-determination."166 The
extent of self-determination provided for in the UN DRIP is more particularly defined
in its subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or
undermining any of their rights;
(d) Any form of forced assimilation or integration;

2. States shall undertake effective consultations with the indigenous peoples

concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free
and informed consent prior to the approval of any project affecting their lands or
territories and other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse environmental,
economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement
of treaties, agreements and other constructive arrangements concluded with States or

their successors and to have States honour and respect such treaties, agreements and
other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the
rights of indigenous peoples contained in treaties, agreements and other constructive
arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must
now be regarded as embodying customary international law - a question which the
Court need not definitively resolve here - the obligations enumerated therein do not
strictly require the Republic to grant the Bangsamoro people, through the
instrumentality of the BJE, the particular rights and powers provided for in the MOAAD. Even the more specific provisions of the UN DRIP are general in scope, allowing
for flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
presupposes that it is the State which will provide protection for indigenous peoples
against acts like the forced dispossession of their lands - a function that is normally
performed by police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State, then surely the
protection of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous
peoples to the aerial domain and atmospheric space. What it upholds, in Article 26
thereof, is the right of indigenous peoples to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy,
does not obligate States to grant indigenous peoples the near-independent status of
an associated state. All the rights recognized in that document are qualified in Article
46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any State, people,
group or person any right to engage in any activity or to perform any act contrary to
the Charter of the United Nations or construed as authorizing or encouraging any
action which would dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article
II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOAAD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents
proffer, however, that the signing of the MOA-AD alone would not have entailed any
violation of law or grave abuse of discretion on their part, precisely because it
stipulates that the provisions thereof inconsistent with the laws shall not take effect
until these laws are amended. They cite paragraph 7 of the MOA-AD strand on
GOVERNANCE quoted earlier, but which is reproduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to
mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework with due regard to non derogation of
prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD
from coming into force until the necessary changes to the legal framework are
effected. While the word "Constitution" is not mentioned in the provision now under
consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly
broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of
incorporating in the MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states
that the "negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is
defective because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is
founded on E.O. No. 3, Section 5(c), which states that there shall be established
Government Peace Negotiating Panels for negotiations with different rebel groups to
be "appointed by the President as her official emissaries to conduct negotiations,
dialogues, and face-to-face discussions with rebel groups." These negotiating panels
are to report to the President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro
Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only
to those options available under the laws as they presently stand. One of the
components of a comprehensive peace process, which E.O. No. 3 collectively refers to
as the "Paths to Peace," is the pursuit of social, economic, and political reforms which
may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No.
3, which reiterates Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace
process comprise the processes known as the "Paths to Peace". These component
processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may
not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component
involves the vigorous implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed conflicts and social
unrest. This may require administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents

to address, pursuant to this provision of E.O. No. 3, the root causes of the armed
conflict in Mindanao. The E.O. authorized them to "think outside the box," so to
speak. Hence, they negotiated and were set on signing the MOA-AD that included
various social, economic, and political reforms which cannot, however, all be
accommodated within the present legal framework, and which thus would require new
legislation and constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here,
because it must be asked whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the
President, in the course of peace negotiations, agree to pursue reforms that would
require new legislation and constitutional amendments, or should the reforms be
restricted only to those solutions which the present laws allow? The answer to this
question requires a discussion of the extent of the President's power to conduct peace
negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is
not explicitly mentioned in the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive Secretary,168 in issue was the authority of the
President to declare a state of rebellion - an authority which is not expressly provided
for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to
forbid the return of her exiled predecessor. The rationale for the majority's ruling
rested on the President's
. . . unstated residual powers which are implied from the grant of executive power
and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the
article on the Executive Department and in scattered provisions of the Constitution.
This is so, notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of specific powers of
the President, particularly those relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from
her powers as chief executive and, at the same time, draws strength from her
Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in
her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the
President has the general responsibility to promote public peace, and as Commanderin-Chief, she has the more specific duty to prevent and suppress rebellion and lawless
violence.169
As the experience of nations which have similarly gone through internal armed conflict
will show, however, peace is rarely attained by simply pursuing a military solution.
Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's
constitutional structure is required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must
form the core of any post-conflict peace-building mission. As we have observed in
Liberia and Haiti over the last ten years, conflict cessation without modification of the
political environment, even where state-building is undertaken through technical
electoral assistance and institution- or capacity-building, is unlikely to succeed. On
average, more than 50 percent of states emerging from conflict return to conflict.
Moreover, a substantial proportion of transitions have resulted in weak or limited
democracies.
The design of a constitution and its constitution-making process can play an important
role in the political and governance transition. Constitution-making after conflict is an
opportunity to create a common vision of the future of a state and a road map on
how to get there. The constitution can be partly a peace agreement and partly a
framework setting up the rules by which the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and legal status
of peace agreements, observed that the typical way that peace agreements establish
or confirm mechanisms for demilitarization and demobilization is by linking them to
new constitutional structures addressing governance, elections, and legal and human
rights institutions.171
In the Philippine experience, the link between peace agreements and constitutionmaking has been recognized by no less than the framers of the Constitution. Behind
the provisions of the Constitution on autonomous regions172 is the framers' intention
to implement a particular peace agreement, namely, the Tripoli Agreement of 1976
between the GRP and the MNLF, signed by then Undersecretary of National Defense
Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I
will reserve my right to ask them if they are not covered by the other speakers. I have
only two questions.
I heard one of the Commissioners say that local autonomy already exists in the
Muslim region; it is working very well; it has, in fact, diminished a great deal of the
problems. So, my question is: since that already exists, why do we have to go into
something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is merely a
partial response to the Tripoli Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state policy.173(Emphasis
supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them
have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino
people are still faced with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for bringing this
conflict to an end and to achieve lasting peace in Mindanao, then she must be given
the leeway to explore, in the course of peace negotiations, solutions that may require
changes to the Constitution for their implementation. Being uniquely vested with the
power to conduct peace negotiations with rebel groups, the President is in a singular
position to know the precise nature of their grievances which, if resolved, may bring
an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she
considers viable, but she may not be prevented from submitting them as

recommendations to Congress, which could then, if it is minded, act upon them

pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3
of the Constitution, to propose the recommended amendments or revision to the
people, call a constitutional convention, or submit to the electorate the question of
calling such a convention.
While the President does not possess constituent powers - as those powers may be
exercised only by Congress, a Constitutional Convention, or the people through
initiative and referendum - she may submit proposals for constitutional change to
Congress in a manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of
directly submitting proposals for constitutional amendments to a referendum,
bypassing the interim National Assembly which was the body vested by the 1973
Constitution with the power to propose such amendments. President Marcos, it will be
recalled, never convened the interim National Assembly. The majority upheld the
President's act, holding that "the urges of absolute necessity" compelled the President
as the agent of the people to act as he did, there being no interim National Assembly
to propose constitutional amendments. Against this ruling, Justices Teehankee and
Muoz Palma vigorously dissented. The Court's concern at present, however, is not
with regard to the point on which it was then divided in that controversial case, but on
that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that
the President may directly submit proposed constitutional amendments to a
referendum, implicit in his opinion is a recognition that he would have upheld the
President's action along with the majority had the President convened the interim
National Assembly and coursed his proposals through it. Thus Justice Teehankee
opined:
"Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of
the exercise of such powers, and the constituent power has not been granted to but
has been withheld from the President or Prime Minister, it follows that the President's
questioned decrees proposing and submitting constitutional amendments directly to
the people (without the intervention of the interim National Assembly in whom the
power is expressly vested) are devoid of constitutional and legal basis."176 (Emphasis
supplied)
From the foregoing discussion, the principle may be inferred that the President - in
the course of conducting peace negotiations - may validly consider implementing even
those policies that require changes to the Constitution, but she may not unilaterally
implement them without the intervention of Congress, or act in any way as if the
assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also
submit her recommendations to the people, not as a formal proposal to be voted on
in a plebiscite similar to what President Marcos did in Sanidad, but for their
independent consideration of whether these recommendations merit being formally
proposed through initiative.
These recommendations, however, may amount to nothing more than the President's
suggestions to the people, for any further involvement in the process of initiative by
the Chief Executive may vitiate its character as a genuine "people's initiative." The
only initiative recognized by the Constitution is that which truly proceeds from the
people. As the Court stated in Lambino v. COMELEC:177

"The Lambino Group claims that their initiative is the people's voice.' However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification
of their petition with the COMELEC, that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional
reforms.' The Lambino Group thus admits that their people's' initiative is an
unqualified support to the agenda' of the incumbent President to change the
Constitution. This forewarns the Court to be wary of incantations of people's voice' or
sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath of office,178
only to preserve and defend the Constitution. Such presidential power does not,
however, extend to allowing her to change the Constitution, but simply to recommend
proposed amendments or revision. As long as she limits herself to recommending
these changes and submits to the proper procedure for constitutional amendments
and revision, her mere recommendation need not be construed as an unconstitutional
act.
The foregoing discussion focused on the President's authority to propose
constitutional amendments, since her authority to propose new legislation is not in
controversy. It has been an accepted practice for Presidents in this jurisdiction to
propose new legislation. One of the more prominent instances the practice is usually
done is in the yearly State of the Nation Address of the President to Congress.
Moreover, the annual general appropriations bill has always been based on the budget
prepared by the President, which - for all intents and purposes - is a proposal for new
legislation coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed
standards
Given the limited nature of the President's authority to propose constitutional
amendments, she cannot guarantee to any third party that the required amendments
will eventually be put in place, nor even be submitted to a plebiscite. The most she
could do is submit these proposals as recommendations either to Congress or the
people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions
thereof which cannot be reconciled with the present Constitution and laws "shall come
into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework." This stipulation does not bear the marks
of a suspensive condition - defined in civil law as a future and uncertain event - but of
a term. It is not a question of whether the necessary changes to the legal framework
will be effected, but when. That there is no uncertainty being contemplated is plain
from what follows, for the paragraph goes on to state that the contemplated changes
shall be "with due regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the
changes to the legal framework contemplated in the MOA-AD - which changes would
include constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted
among the "prior agreements" from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these "consensus points" and, notably, the deadline for
effecting the contemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the

President's authority to propose constitutional amendments, it being a virtual
guarantee that the Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus points" found in the MOA-AD.
Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase I covered a three-year transitional period involving
the putting up of new administrative structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD) and the Southern Philippines
Council for Peace and Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government through amendment or
repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the
expanded autonomous region envisioned by the parties. To that extent, they are
similar to the provisions of the MOA-AD. There is, however, a crucial difference
between the two agreements. While the MOA-AD virtually guarantees that the
"necessary changes to the legal framework" will be put in place, the GRP-MNLF final
peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be
recommended by the GRP to Congress for incorporation in the amendatory or
repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine
government to the international community that it would grant to the Bangsamoro
people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included
foreign dignitaries as signatories. In addition, representatives of other nations were
invited to witness its signing in Kuala Lumpur. These circumstances readily lead one
to surmise that the MOA-AD would have had the status of a binding international
agreement had it been signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty180 (the Lom
Accord case) of the Special Court of Sierra Leone is enlightening. The Lom Accord
was a peace agreement signed on July 7, 1999 between the Government of Sierra
Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra
Leone Government had been in armed conflict for around eight years at the time of
signing. There were non-contracting signatories to the agreement, among which were
the Government of the Togolese Republic, the Economic Community of West African
States, and the UN.
On January 16, 2002, after a successful negotiation between the UN SecretaryGeneral and the Sierra Leone Government, another agreement was entered into by
the UN and that Government whereby the Special Court of Sierra Leone was
established. The sole purpose of the Special Court, an international court, was to try
persons who bore the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone
since November 30, 1996.

Among the stipulations of the Lom Accord was a provision for the full pardon of the
members of the RUF with respect to anything done by them in pursuit of their
objectives as members of that organization since the conflict began.
In the Lom Accord case, the Defence argued that the Accord created an
internationally binding obligation not to prosecute the beneficiaries of the amnesty
provided therein, citing, among other things, the participation of foreign dignitaries
and international organizations in the finalization of that agreement. The Special
Court, however, rejected this argument, ruling that the Lome Accord is not a treaty
and that it can only create binding obligations and rights between the parties in
municipal law, not in international law. Hence, the Special Court held, it is ineffective
in depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed conflict it
is easy to assume and to argue with some degree of plausibility, as Defence counsel
for the defendants seem to have done, that the mere fact that in addition to the
parties to the conflict, the document formalizing the settlement is signed by foreign
heads of state or their representatives and representatives of international
organizations, means the agreement of the parties is internationalized so as to create
obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose auspices
the settlement took place but who are not at all parties to the conflict, are not
contracting parties and who do not claim any obligation from the contracting parties
or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and
the RUF which has no status of statehood and is to all intents and purposes a faction
within the state. The non-contracting signatories of the Lom Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this
peace agreement is implemented with integrity and in good faith by both parties". The
moral guarantors assumed no legal obligation. It is recalled that the UN by its
representative appended, presumably for avoidance of doubt, an understanding of the
extent of the agreement to be implemented as not including certain international
crimes.
42. An international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will be a
breach determined under international law which will also provide principle means of
enforcement. The Lom Agreement created neither rights nor obligations capable of
being regulated by international law. An agreement such as the Lom Agreement
which brings to an end an internal armed conflict no doubt creates a factual situation
of restoration of peace that the international community acting through the Security
Council may take note of. That, however, will not convert it to an international
agreement which creates an obligation enforceable in international, as distinguished
from municipal, law. A breach of the terms of such a peace agreement resulting in
resumption of internal armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a reversal of the factual situation
of peace to be visited with possible legal consequences arising from the new situation
of conflict created. Such consequences such as action by the Security Council
pursuant to Chapter VII arise from the situation and not from the agreement, nor
from the obligation imposed by it. Such action cannot be regarded as a remedy for
the breach. A peace agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international armed conflict which,

essentially, must be between two or more warring States. The Lom Agreement
cannot be characterised as an international instrument. x x x" (Emphasis, italics and
underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to
vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a
unilateral declaration of the Philippine State, binding under international law, that it
would comply with all the stipulations stated therein, with the result that it would
have to amend its Constitution accordingly regardless of the true will of the people.
Cited as authority for this view is Australia v. France,181 also known as the Nuclear
Tests Case, decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's
nuclear tests in the South Pacific. France refused to appear in the case, but public
statements from its President, and similar statements from other French officials
including its Minister of Defence, that its 1974 series of atmospheric tests would be its
last, persuaded the ICJ to dismiss the case.182 Those statements, the ICJ held,
amounted to a legal undertaking addressed to the international community, which
required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be
bound to the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations.
Declarations of this kind may be, and often are, very specific. When it is the intention
of the State making the declaration that it should become bound according to its
terms, that intention confers on the declaration the character of a legal undertaking,
the State being thenceforth legally required to follow a course of conduct consistent
with the declaration. An undertaking of this kind, if given publicly, and with an intent
to be bound, even though not made within the context of international negotiations, is
binding. In these circumstances, nothing in the nature of a quid pro quo nor any
subsequent acceptance of the declaration, nor even any reply or reaction from other
States, is required for the declaration to take effect, since such a requirement would
be inconsistent with the strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may choose to take
up a certain position in relation to a particular matter with the intention of being
bound-the intention is to be ascertained by interpretation of the act. When States
make statements by which their freedom of action is to be limited, a restrictive
interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests. It was bound to assume that other
States might take note of these statements and rely on their being effective. The
validity of these statements and their legal consequences must be considered within
the general framework of the security of international intercourse, and the confidence
and trust which are so essential in the relations among States. It is from the actual
substance of these statements, and from the circumstances attending their making,
that the legal implications of the unilateral act must be deduced. The objects of these
statements are clear and they were addressed to the international community as a

whole, and the Court holds that they constitute an undertaking possessing legal
effect. The Court considers *270 that the President of the Republic, in deciding upon
the effective cessation of atmospheric tests, gave an undertaking to the international
community to which his words were addressed. x x x (Emphasis and underscoring
supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following
conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and
that not to give legal effect to those statements would be detrimental to the security
of international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later
case decided by the ICJ entitled Burkina Faso v. Mali,183 also known as the Case
Concerning the Frontier Dispute. The public declaration subject of that case was a
statement made by the President of Mali, in an interview by a foreign press agency,
that Mali would abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending between Mali and
Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President
was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear
Tests case rested on the peculiar circumstances surrounding the French declaration
subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must be
taken of all the factual circumstances in which the act occurred. For example, in the
Nuclear Tests cases, the Court took the view that since the applicant States were not
the only ones concerned at the possible continuance of atmospheric testing by the
French Government, that Government's unilateral declarations had conveyed to the
world at large, including the Applicant, its intention effectively to terminate these
tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express an intention
to be bound otherwise than by unilateral declarations. It is difficult to see how it could
have accepted the terms of a negotiated solution with each of the applicants without
thereby jeopardizing its contention that its conduct was lawful. The circumstances of
the present case are radically different. Here, there was nothing to hinder the Parties
from manifesting an intention to accept the binding character of the conclusions of
the Organization of African Unity Mediation Commission by the normal method: a
formal agreement on the basis of reciprocity. Since no agreement of this kind was
concluded between the Parties, the Chamber finds that there are no grounds to
interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral
act with legal implications in regard to the present case. (Emphasis and underscoring
supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international
community. The Philippine panel did not draft the same with the clear intention of
being bound thereby to the international community as a whole or to any State, but
only to the MILF. While there were States and international organizations involved,
one way or another, in the negotiation and projected signing of the MOA-AD, they
participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in
the Lom Accord case, the mere fact that in addition to the parties to the conflict, the
peace settlement is signed by representatives of states and international organizations
does not mean that the agreement is internationalized so as to create obligations in
international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal
effect to such commitments would not be detrimental to the security of international
intercourse - to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to
that of Burkina Faso wherein, as already discussed, the Mali President's statement
was not held to be a binding unilateral declaration by the ICJ. As in that case, there
was also nothing to hinder the Philippine panel, had it really been its intention to be
bound to other States, to manifest that intention by formal agreement. Here, that
formal agreement would have come about by the inclusion in the MOA-AD of a clear
commitment to be legally bound to the international community, not just the MILF,
and by an equally clear indication that the signatures of the participating statesrepresentatives would constitute an acceptance of that commitment. Entering into
such a formal agreement would not have resulted in a loss of face for the Philippine
government before the international community, which was one of the difficulties that
prevented the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the international community. On that
ground, the MOA-AD may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the Philippines under international
law notwithstanding, respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to constitute grave abuse
of discretion. The grave abuse lies not in the fact that they considered, as a solution
to the Moro Problem, the creation of a state within a state, but in their brazen
willingness to guarantee that Congress and the sovereign Filipino people would give
their imprimatur to their solution. Upholding such an act would amount to authorizing
a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only
way that the Executive can ensure the outcome of the amendment process is through
an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of
its own territory to the Moros for the sake of peace, for it can change the Constitution
in any it wants, so long as the change is not inconsistent with what, in international
law, is known as Jus Cogens.184 Respondents, however, may not preempt it in that
decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents
from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority
by the mere act of guaranteeing amendments to the Constitution. Any alleged
violation of the Constitution by any branch of government is a proper matter for
judicial review.

exceptional character of the situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar, and the public; and (d)
the fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the
GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back
in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn
up that could contain similar or significantly dissimilar provisions compared to the
original.
The Court, however, finds that the prayers for mandamus have been rendered moot
in view of the respondents' action in providing the Court and the petitioners with the
official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III
of the Constitution is in splendid symmetry with the state policy of full public
disclosure of all its transactions involving public interest under Sec. 28, Article II of the
Constitution. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive
the same self-executory nature, subject only to reasonable safeguards or limitations
as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information contemplates
steps and negotiations leading to the consummation of the contract, jurisprudence
finds no distinction as to the executory nature or commercial character of the
agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or
process of communication between the government and the people. Corollary to these
twin rights is the design for feedback mechanisms. The right to public consultation
was envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the people's right to be consulted on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building. In fact, it is
the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues
to seek relevant information, comments, advice, and recommendations from peace
partners and concerned sectors of society.

As the petitions involve constitutional issues which are of paramount public interest or
of transcendental importance, the Court grants the petitioners, petitioners-inintervention and intervening respondents the requisite locus standi in keeping with the
liberal stance adopted in David v. Macapagal-Arroyo.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical to the
environment and human ecology including those that may call for the eviction of a
particular group of people residing in such locality, is implemented therein. The MOAAD is one peculiar program that unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people, which could pervasively and drastically result
to the diaspora or displacement of a great number of inhabitants from their total
environment.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court
finds that the present petitions provide an exception to the "moot and academic"
principle in view of (a) the grave violation of the Constitution involved; (b) the

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides
for clear-cut procedure for the recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and prior informed consent of
the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does

not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or
compromise.
The invocation of the doctrine of executive privilege as a defense to the general right
to information or the specific right to consultation is untenable. The various explicit
legal provisions fly in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed the official copies of
the final draft of the MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated
by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process
by which the MOA-AD was designed and crafted runs contrary to and in excess of the
legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its
specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is
on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent
with the present legal framework will not be effective until that framework is
amended, the same does not cure its defect. The inclusion of provisions in the MOAAD establishing an associative relationship between the BJE and the Central
Government is, itself, a violation of the Memorandum of Instructions From The
President dated March 1, 2001, addressed to the government peace panel. Moreover,
as the clause is worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel
nor the President herself is authorized to make such a guarantee. Upholding such an
act would amount to authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves through the process
of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that renders
the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening
petitions are GIVEN DUE COURSE and hereby GRANTED.