Arigo vs.
Swift (2014) Management Board (TPAMB) which shall be the
G.R. No. 206510 | 2014-09-15
Subject: Citizen suit in Environmental cases
(Locus Standi of petitioners); State immunity
from suit (Doctrine of sovereign immunity);
Doctrine of non-suability of the State also
applies to complaints filed against officials of
the state for acts performed by them in the
discharge of their duties; Immunity of foreign
states from the jurisdiction of local courts; State
immunity extends only to acts Jure imperii;
Present petition is a suit against the United
States, and is barred under the principle of
state immunity; Waiver of State immunity
under the VF A pertains only to criminal
jurisdiction; Award of damages not one of the
reliefs granted in a Writ of Kalikasan suit; US
expected to comply with international
obligations under the UNCLOS, despite being a
non-party to the international agreement; Court
defers to the Executive Branch on the matter of
compensation and rehabilitation measures
Facts:
This is a petition for the issuance of a Writ of
Kalikasan with prayer for the issuance of a
Temporary Environmental Protection Order
(TEPO) in relation to the grounding of the US
military ship USS Guardian over the Tubbataha
Reefs.
In 1988, Tubbataha was declared a National
Marine Park. In 1993, Tubbataha was inscribed
by the United Nations Educational Scientific and
Cultural Organization (UNESCO) as a World
Heritage Site. Located in the middle of Central
Sulu Sea, southeast of Puerto Princesa City,
Tubbataha lies at the heart of the Coral
Triangle, the global center of marine
biodiversity.
In 2010, Congress passed Republic Act No.
10067, otherwise known as the "Tubbataha
Reefs Natural Park (TRNP) Act of 2009" "to
ensure the protection and conservation of the
Tubbataha Reefs. Under the "no-take" policy,
entry into the waters of TRNP is strictly
regulated and many human activities are
prohibited and penalized or fined, including
fishing, gathering, destroying and disturbing
the resources within the TRNP. The law likewise
created the Tubbataha Protected Area
sole policy-making and permit-granting body of
the TRNP.
On January 13, 2013, the USS Guardian, with
diplomatic clearance obtained by the US
Embassy, arrived at the port of Subic Bay for
the purpose of routine ship replenishment,
maintenance, and crew liberty." Two days later,
the USS Guardian departed Subic Bay for its
next port of call in Makassar, Indonesia. On
January 17, 2013 at 2:20 a.m. while transiting
the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha
Reefs, about 80 miles east-southeast of
Palawan.
The US Ambassador assured Foreign Affairs
Secretary Albert F. del Rosario that the United
States will provide appropriate compensation
for damage to the reef caused by the ship.
By March 30, 2013, the US Navy-led salvage
team had finished removing the last piece of
the grounded ship from the coral reef.
Petitioners on their behalf and in representation
of their respective sectors, filed the present
petition for issuance of a Writ of Kalikasan or
TEPO against respondents composed of
members of the US Navy, the President Aquino,
Defense Secretary, Philippine Coast Guard, etc.
Petitioners claim that the grounding, salvaging
and post-salvaging operations of the USS
Guardian cause and continue to cause
environmental damage of such magnitude as to
affect the provinces of Palawan, Antique, Aklan,
Guimaras, Iloilo, Negros Occidental, Negros
Oriental, Zamboanga del Norte, Basilan, Sulu,
and Tawi-Tawi, which events violate their
constitutional rights to a balanced and healthful
ecology. They also seek a directive from the
Court for the institution of civil, administrative
and criminal suits for acts committed in
violation of environmental laws and regulations
in connection with the grounding incident.
Held:
Citizen suit in Environmental cases (Locus
Standi of petitioners)
1. Locus standi is "a right of appearance in a
court of justice on a given question."
1
Specifically, it is "a partys personal and
substantial interest in a case where he has
sustained or will sustain direct injury as a
result" of the act being challenged, and "calls
for more than just a generalized grievance."
2. However, the rule on standing is a
procedural matter which this Court has relaxed
for non-traditional plaintiffs like ordinary
citizens, taxpayers and legislators when the
public interest so requires, such as when the
subject matter of the controversy is of
transcendental importance, of overreaching
significance to society, or of paramount public
interest.
3. In the landmark case of Oposa v. Factoran,
Jr., we recognized the "public right" of citizens
to "a balanced and healthful ecology which, for
the first time in our constitutional history, is
solemnly incorporated in the fundamental law."
We declared that the right to a balanced and
healthful ecology need not be written in the
Constitution for it is assumed, like other civil
and political rights guaranteed in the Bill of
Rights, to exist from the inception of mankind
and it is an issue of transcendental importance
with intergenerational implications. Such right
carries with it the correlative duty to refrain
from impairing the environment.
4. The Court ruled that not only do ordinary
citizens have legal standing to sue for the
enforcement of environmental rights, they can
do so in representation of their own and future
generations. Their personality to sue in behalf
of the succeeding generations can only be
based on the concept of intergenerational
responsibility insofar as the right to a balanced
and healthful ecology is concerned. Every
generation has a responsibility to the next
to preserve that rhythm and harmony of
nature for the full enjoyment of a balanced and
healthful ecology.
5. The liberalization of standing first
enunciated in Oposa, insofar as it refers to
minors and generations yet unborn, is now
enshrined in A.M. No. 09-6-8-SC, otherwise
known as the Rules of Procedure for
Environmental Cases (Rules) which allows the
filing of a citizen suit in environmental cases.
The provision on citizen suits in the Rules
"collapses the traditional rule on personal and
direct interest, on the principle that humans are
stewards of nature.
State immunity from suit (Doctrine of
sovereign immunity)
6. The immunity of the State from suit, known
also as the doctrine of sovereign immunity or
non-suability of the State, is expressly provided
in Section 3, Article XVI of the 1987
Constitution which states: : The State may not
be sued without its consent.
7. The rule that a state may not be sued
without its consent is one of the generally
accepted principles of international law that we
have adopted as part of the law of our land
under Article II, Section 2. Even without such
affirmation, we would still be bound by the
generally accepted principles of international
law under the doctrine of incorporation. Under
this doctrine, as accepted by the majority of
states, such principles are deemed
incorporated in the law of every civilized state
as a condition and consequence of its
membership in the society of nations. Upon its
admission to such society, the state is
automatically obligated to comply with these
principles in its relations with other states. (see
U.S. vs. Guinto)
8. As applied to the local state, the doctrine of
state immunity is based on the justification
given by Justice Holmes that "there can be no
legal right against the authority which makes
the law on which the right depends."
[Kawanakoa v. Polybank] In the case of the
foreign state sought to be impleaded in the
local jurisdiction, the added inhibition is
expressed in the maxim par in parem, non
habet imperium. All states are sovereign equals
and cannot assert jurisdiction over one
another. A contrary disposition would, in the
language of a celebrated case, "unduly vex the
peace of nations." (see U.S. vs. Guinto)
Doctrine of non-suability of the State also
applies to complaints filed against officials
of the state for acts performed by them in
the discharge of their duties
9. While the doctrine appears to prohibit only
suits against the state without its consent, it
is also applicable to complaints filed against
2
officials of the state for acts allegedly
performed by them in the discharge of their
duties.The rule is that if the judgment against
such officials will require the state itself to
perform an affirmative act to satisfy the same,
such as the appropriation of the amount
needed to pay the damages awarded against
them, the suit must be regarded as against the
state itself although it has not been formally
impleaded. [Garcia vs. Chief of Staff] In such a
situation, the state may move to dismiss the
complaint on the ground that it has been filed
without its consent.
Immunity of foreign states from the
jurisdiction of local courts
10. The precept that a State cannot be sued in
the courts of a foreign state is a long-standing
rule of customary international law then closely
identified with the personal immunity of a
foreign sovereign from suit and, with the
emergence of democratic states, made to
attach not just to the person of the head of
state, or his representative, but also distinctly
to the state itself in its sovereign capacity. If the
acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although
not necessarily a diplomatic personage, but
acting in his official capacity, the complaint
could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a
representative of a state is believed to be, in
effect, suing the state itself. The proscription is
not accorded for the benefit of an individual but
for the State, in whose service he is, under the
maxim - par in parem, non habet imperium -
that all states are sovereign equals and cannot
assert jurisdiction over one another. The
implication, in broad terms, is that if the
judgment against an official would require the
state itself to perform an affirmative act to
satisfy the award, such as the appropriation of
the amount needed to pay the damages
decreed against him, the suit must be regarded
as being against the state itself, although it has
not been formally impleaded. (see Minucher vs.
Court of Appeals)
11. In the case of diplomatic immunity, the
privilege is not an immunity from the
observance of the law of the territorial
sovereign or from ensuing legal liability; it is,
rather, an immunity from the exercise of
territorial jurisdiction.
State immunity extends only to acts Jure
imperii
12. The traditional rule of State immunity which
exempts a State from being sued in the courts
of another State without the former's consent
or waiver has evolved into a restrictive
doctrine which distinguishes sovereign and
governmental acts (Jure imperii) from private,
commercial and proprietary acts (Jure
gestionis). Under the restrictive rule of State
immunity, State immunity extends only to acts
Jure imperii. The restrictive application of State
immunity is proper only when the proceedings
arise out of commercial transactions of the
foreign sovereign, its commercial activities or
economic affairs.
13. The doctrine of immunity from suit will not
apply and may not be invoked where the public
official is being sued in his private and personal
capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of
the government is removed the moment they
are sued in their individual capacity. This
situation usually arises where the public official
acts without authority or in excess of the
powers vested in him. It is a well-settled
principle of law that a public official may be
liable in his personal private capacity for
whatever damage he may have caused by his
act done with malice and in bad faith, or
beyond the scope of his authority or
jurisdiction. The rationale for this ruling is that
the doctrine of state immunity cannot be used
as an instrument for perpetrating an
injustice. (Shauf vs. Court of Appeals)
Present petition is a suit against the
United States, and is barred under the
principle of state immunity
14. The US respondents in this case were sued
in their official capacity as commanding officers
of the US Navywho had control and supervision
over the USS Guardian and its crew. The alleged
act or omission resulting in the unfortunate
grounding of the USS Guardian on the TRNP
was committed while they were performing
official military duties. Considering that the
satisfaction of a judgment against said officials
will require remedial actions and appropriation
3
of funds by the US government, the suit is
deemed to be one against the US
itself. The principle of State immunity therefore
bars the exercise of jurisdiction by this Court
over the persons of respondents Swift, Rice and
Robling.
Waiver of state immunity under the VF A
pertains only to criminal jurisdiction
15. Petitioners argue that there is a waiver of
immunity from suit found in the Visiting Forces
Ageement (VFA). Even under the common law
tort claims, petitioners asseverate that the US
respondents are liable for negligence, trespass
and nuisance.
16. The waiver of State immunity under the
VFA pertains only to criminal jurisdiction and
not to special civil actions such as the present
petition for issuance of a writ of Kalikasan. In
fact, it can be inferred from Section 17, Rule 7
of the Rules that a criminal case against a
person charged with a violation of an
environmental law is to be filed separately.
17. The VFA is an agreement which defines the
treatment of United States troops and
personnel visiting the Philippines to promote
"common security interests" between the US
and the Philippines in the region. It defines the
rights of the United States and the Philippine
government in the matter of criminal
jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment,
materials and supplies. The invocation of US
federal tort laws and even common law is thus
improper considering that it is the VFA which
governs disputes involving US military ships
and crew navigating Philippine waters in
pursuance of the objectives of the agreement.
18. In any case, it is our considered view that a
ruling on the application or non-application of
criminal jurisdiction provisions of the VFA to US
personnel who may be found responsible for
the grounding of the USS Guardian, would be
premature and beyond the province of a
petition for a writ of Kalikasan. We also find it
unnecessary at this point to determine whether
such waiver of State immunity is indeed
absolute.
Award of damages not one of the reliefs
granted in a Writ of Kalikasan suit
19. We cannot grant damages which have
resulted from the violation of environmental
laws. The Rules allows the recovery of
damages, including the collection of
administrative fines under R.A. No. 10067, in a
separate civil suitor that deemed instituted with
the criminal action charging the same violation
of an environmental Law.
20. Section 15, Rule 7 enumerates the reliefs
which may be granted in a petition for issuance
of a Writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from
the time the petition is submitted for decision,
the court shall render judgment granting or
denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ
are the following:
xxx
( e) Such other reliefs which relate to the right
of the people to a balanced and healthful
ecology or to the protection, preservation,
rehabilitation or restoration of the
environment, except the award of damages to
individual petitioners.
US expected to comply with international
obligations under the UNCLOS, despite
being a non-party to the international
agreement
21. Associate Justice Antonio T. Carpio took the
position that the conduct of the US in this case,
when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage
to the TRNP reef system, brings the matter
within the ambit of Article 31 of the United
Nations Convention on the Law of the Sea
(UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as
extensions of their flag State, Art. 31 of the
UNCLOS creates an exception to this rule in
cases where they fail to comply with the rules
and regulations of the coastal State regarding
passage through the latter's internal waters
and the territorial sea.
22. The international law of the sea is generally
4
defined as "a body of treaty rules arid
customary norms governing the uses of the
sea, the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes.
It is a branch of public international law,
regulating the relations of states with respect to
the uses of the oceans." The UNCLOS is a
multilateral treaty which was opened for
signature on December 10, 1982 at Montego
Bay, Jamaica. It was ratified by the Philippines
in 1984 but came into force on November 16,
1994 upon the submission of the 60th
ratification.
23. The UNCLOS is a product of international
negotiation that seeks to balance State
sovereignty (mare clausum)and the principle of
freedom of the high seas (mare liberum). The
freedom to use the world's marine waters is
one of the oldest customary principles of
international law. The UNCLOS gives to the
coastal State sovereign rights in varying
degrees over the different zones of the sea
which are: 1) internal waters, 2) territorial sea,
3) contiguous zone, 4) exclusive economic
zone, and 5) the high seas. It also gives coastal
States more or less jurisdiction over foreign
vessels depending on where the vessel is
located.
24. Insofar as the internal waters and territorial
sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other
rules of international law. Such sovereignty
extends to the air space over the territorial sea
as well as to its bed and subsoil.
25. In the case of warships, they continue to
enjoy sovereign immunity subject to the
following exceptions: Article 30(Non-
compliance by warships with the laws and
regulations of the coastal State); Article 31
(Responsibility of the flag State for damage
caused by a warship or other government ship
operated for non-commercial purposes); Article
32 (Immunities of warships and other
government ships operated for non-commercial
purposes).
26. A foreign warship's unauthorized entry into
our internal waters with resulting damage to
marine resources is one situation in which the
above exception (removing immunity) may
apply. But what if the offending warship is a
non-party to the UNCLOS, as in this case, the
US? While over 80% of nation states are now
members of UNCLOS, the US, the world's
leading maritime power, has not ratified it.
27. According to Justice Carpio, although
the US to date has not ratified the UNCLOS, as
a matter of long-standing policy the US
considers itself bound by customary
international rules on the "traditional uses of
the oceans" as codified in UNCLOS.
28. Non-membership in the UNCLOS does not
mean that the US will disregard the rights of
the Philippines as a Coastal State over its
internal waters and territorial sea. We thus
expect the US to bear "international
responsibility" under Art. 31 in connection with
the USS Guardian grounding which adversely
affected the Tubbataha reefs.
29. Although the said treaty upholds the
immunity of warships from the jurisdiction of
Coastal States while navigating the latter's
territorial sea, the flag States shall be required
to leave the territorial sea immediately if they
flout the laws and regulations of the Coastal
State, and they will be liable for damages
caused by their warships or any other
government vessel operated for non-
commercial purposes under Article 31.
Court defers to the Executive Branch on
the matter of compensation and
rehabilitation measures
30. This petition has become moot in the sense
that the salvage operation sought to be
enjoined or restrained had already been
accomplished when petitioners sought recourse
from this Court. But insofar as the directives to
Philippine respondents to protect and
rehabilitate the coral reef structure and marine
habitat adversely affected by the grounding
incident are concerned, petitioners are entitled
to these reliefs notwithstanding the completion
of the removal of the USS Guardian from the
coral reef.
31. The US and Philippine governments both
expressed readiness to negotiate and discuss
the matter of compensation for the damage
caused by the USS Guardian. Exploring avenues
for settlement of environmental cases is not
5
proscribed by The Rules. Mediation and
settlement are available for the consideration
of the parties, and which dispute resolution
methods are encouraged by the court.
32. The Court defers to the Executive Branch
on the matter of compensation and
rehabilitation measures through diplomatic
channels. Resolution of these issues impinges
on our relations with another State in the
context of common security interests under the
VFA. It is settled that "[t]he conduct of the
foreign relations of our government is
committed by the Constitution to the executive
and legislative-"the political" --departments of
the government, and the propriety of what may
be done in the exercise of this political power is
not subject to judicial inquiry or decision.
2. Case Summary
Heirs of Mendoza vs DPWH (2014)
G.R. No. 203834 | 2014-07-09
Subject: Termination of the project contract
was justified due to delays incurred by
contractor; State will be deemed to have
impliedly waived its nonsuability only if it has
entered into a contract in its proprietary or
private capacity; Contracts entered into by
DPWH with Mendoza for public works
construction were done in the exercise of its
governmental functions
Facts:
Diosdado Mendoza, doing business under the
name and style of D Superior Builders, was the
winning bidder for the construction of the 15-
kilometer Madaymen Masala Amsuling Road in
Benguet and the engineers quarters and
laboratory, designated as Package VI, of the
Highland Agriculture Development Project
(HADP). His total bid for materials and labor
was P16,176,878.58. He was also the winning
bidder for the construction of the 15-kilometer
barangay roads in Benguet, designated as
Package IX of the HADP, with a bid of
P10,527,192.14.
The DPWH hired United Technologies, Inc. (UTI)
as consultant for Packages VI and IX, under the
direct charge of UTIs President Pedro Templo
and UTIs Project Manager Rodante Samonte.
During the pre-construction survey for Package
VI, Mendoza alleged that he discovered that the
whole stretch of the 15-kilometer project had
no right-of-way, in violation of Ministry Order
No. 65. He brought the matter to the attention
of the DPWH and UTI but according to him, it
was only resolved on 29 November 1989 when
the affected landowners and farmers allowed
passage at Mendozas risk.
Mendoza alleged that the defendants DPWH
and UTI, except for DPWH Secretary Estuar,
conspired to make it appear that Superior
Builders incurred negative slippage of 29% and
recommended the forfeiture of the contract.
Mendoza further alleged that as regards
Package IX, the DPWH did not execute any
contract despite the Superior Builders
compliance with all the post-evaluation
requirements. The DPWH also recommended
the rebidding of Package IX. Package IX was, in
effect, canceled together with the forfeiture of
the contract for Package VI.
Mendoza filed an action for specific
performance and damages, with prayer for
preliminary injunction against DPWH and UTI.
The RTC ruled that the termination of the
contract over Package VI and the non-award of
Package IX to Superior Builders were arbitrary
and unjustified. Superior Builders could not be
faulted for its failure to perform the obligation
within the stipulated period because the DPWH
made it impossible by its failure to acquire the
necessary right-of-way. The trial court further
ruled that in entering into a contract, the DPWH
divested itself of immunity from suit and
assumed the character of an ordinary litigant.
The Court of Appeals set aside the trial courts
decision and held that the DPWHs forfeiture
order of Package VI of the HADP as well as the
non-award of Package IX to Superior Builders
was justified. The negative slippage of Superior
Builders was already 31.852%, or more than
double the limit of what is considered as being
at terminal stage, which is 15%. The Court of
Appeals also ruled that the DPWHs contractual
obligation was made in the exercise of its
governmental functions and was imbued with
public interest.
6

Held:
Termination of the project contract was
justified due to delays incurred by
contractor
1. The negative slippage incurred by Superior
Builders, which reached 31.852%, far exceeded
the allowable slippage under Presidential
Decree No. 1870, series of 1983, which states
that: Whenever a contractor is behind
schedule in its contract work and incur 15% or
more negative slippage based on its approved
PERT/CPM, the implementing agency, at the
discretion of the Minister concerned, may
undertake by administration the whole or a
portion of the unfinished work, or have the
whole or a portion of such unfinished work done
by another qualified contractor through
negotiated contract at the current valuation
price.
2. Under Department Order No. 102, series of
1988, the discretion of the DPWH to terminate
or rescind the contract comes into play when
the contractor shall have incurred a negative
slippage of 15% or more.
3. Superior Builders claimed that the negative
slippages were attributable to the government,
citing the right-of-way problem because the
construction site was privately owned.
However, the right-of-way problem turned out
to affect only the first 3.2 kilometers of the
project. Apparently, Superior Builders was not
able to go beyond the 3.2 kilometers because
of the limited equipment it mobilized on the
project site. In fact, its bulldozer broke down
after three days of work, proving that Superior
Builders had been remiss in its responsibilities
as a contractor. In addition, Abalos, the
property owner affected by the right of way,
denied that he disallowed the passage of
Superior Builders vehicles and equipment on
the road within his property. In short, Superior
Builders could have proceeded with the project,
as it was constantly reminded to do so, but it
capitalized on the right-of-way problem to
justify its delays.
4. Given the foregoing, the DPWH was justified
in forfeiting Package VI for Superior Builders
failure to comply with its contractual
obligations. We also note that Package IX of the
HADP was tied to the completion of Package VI
because the Asian Development Bank could not
approve the award of Package IX to Superior
Builders unless its work on Package VI was
satisfactory to the DPWH. This explains why
Package IX had to be rebid despite the initial
award of the project to Superior Builders.
State will be deemed to have impliedly
waived its nonsuability only if it has
entered into a contract in its proprietary
or private capacity
5. The doctrine of immunity from suit is
anchored on Section 3, Article XVI of the 1987
Constitution which provides: The State may
not be sued without its consent.
6. The general rule is that a state may not be
sued, but it may be the subject of a suit if it
consents to be sued, either expressly or
impliedly. There is express consent when a law
so provides, while there is implied consent
when the State enters into a contract or it itself
commences litigation.
7. In order to determine implied waiver when
the State or its agency entered into a contract,
there is a need to distinguish whether the
contract was entered into in
its governmental or proprietary capacity.
8. When a state enters into a contract, it does
not automatically mean that it has waived its
nonsuability. The State will be deemed to
have impliedly waived its nonsuability only
if it has entered into a contract in its
proprietary or private capacity.
However, when the contract involves
its sovereign or governmental capacity, no
such waiver may be implied. Statutory
provisions waiving state immunity are
construed in strictissimi juris. For, waiver of
immunity is in derogation of sovereignty. (see
Department of Health v. Phil. Pharmawealth,
Inc.)
9. An unincorporated agency without any
separate juridical personality of its own enjoys
immunity from suit because it is invested with
an inherent power of sovereignty. However, the
need to distinguish between an unincorporated
7
government agency performing governmental
function and one performing proprietary
functions has arisen. The immunity has been
upheld in favor of the former because its
function is governmental or incidental to such
function; it has not been upheld in favor of the
latter whose function was not in pursuit of a
necessary function of government but was
essentially a business. (see Air Transportation
Office v. Ramos)
Contracts entered into by DPWH with
Mendoza for public works construction
were done in the exercise of its
governmental functions
10. The DPWH is an unincorporated
government agency without any separate
juridical personality of its own and it enjoys
immunity from suit.
11. It is clear from the enumeration of its
functions that the DPWH performs
governmental functions. Section 5(d) of EO 124
states that it has the power to [i]dentify, plan,
secure funding for, program, design, construct
or undertake prequalification, bidding, and
award of contracts of public works projects x x
x while Section 5(e) states that it shall
[p]rovide the works supervision function for all
public works construction and ensure that
actual construction is done in accordance with
approved government plans and
specifications.
12. The contracts that the DPWH entered into
with Mendoza for the construction of Packages
VI and IX of the HADP were done in the exercise
of its governmental functions. Hence,
petitioners cannot claim that there was an
implied waiver by the DPWH simply by entering
into a contract. The Court of Appeals correctly
ruled that theDPWH enjoys immunity from suit
and may not be sued without its consent.
3. Case Summary
ACCFA v. CUGCO
G.R. No. L-21484 | 1969-11-29
Subject: Governmental function, proprietary
function, constituent function, ministrant
function
Facts:
The Agricultural Credit and Cooperative
Financing Administration (ACCFA) was a
government agency created under Republic Act
No. 821. The Land Reform Code (Republic Act
No. 3844) reorganized and changed its name to
the Agricultural Credit Administration. A
collective bargaining agreement was entered
into between ACCFA and its two unions. The
Union declared a strike and, together with its
mother union, the Confederation of Unions in
Government Corporations and Offices (CUGCO)
filed a case with the Court of Industrial
Relations (CIR) for unfair labor practice. During
the pendency of this case, the unions filed a
petition for certification election with the CIR. In
both instances, ACCFA challenges the
jurisdiction of the CIR arguing that is engaged
in governmental functions
Held:
Governmental functions
1. ACCFA is a government office or agency
engaged in government, not proprietary
functions
2. It was established to extend credit and
similar assistance to agriculture. The
implementation of the land reform program in
accordance with the Land Reform Code is most
certainly a governmental, not a proprietary
function.
Constituent functions
3. These functions may not be strictly what
President Wilson described as "constituent," as
opposed to ministrant such as those relating
to the maintenance of peace and the
prevention of crime, those regulating property
and property rights, those relating to the
administration of justice and the determination
of political duties of citizens, and those relating
to national defense and foreign relations.
4. Under this traditional classification, such
constituent functions are exercised by the State
as attributes of sovereignty, and not merely to
promote the welfare, progress and prosperity of
the people these letter functions being
ministrant he exercise of which is optional on
the part of the government.
8

5. The growing complexities of modern society,
however, have rendered this traditional
classification of the functions of government
quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and
initiative and which the government was called
upon to enter optionally, and only "because it
was better equipped to administer for the
public welfare than is any private individual or
group of individuals," continue to lose their
well-defined boundaries and to be absorbed
within activities that the government must
undertake in its sovereign capacity if it is to
meet the increasing social challenges of the
times. Here as almost everywhere else the
tendency is undoubtedly towards a greater
socialization of economic forces. Here of course
this development was envisioned, indeed
adopted as a national policy, by the
Constitution itself in its declaration of principle
concerning the promotion of social justice.
4. Case Summary
Shell Philippines Exploration B. V. vs.
Efren Jalos
G.R. No. 179918 | 2010-09-08
Subject: The case falls within the
administrative jurisdiction of the Pollution
Adjudication Board; The complaint sufficiently
alleges a cause of action against Shell; Shell is
not an agent of the State and cannot invoke
state immunity
Facts:
In 1990, Shell Philippines Exploration B.V.
(Shell) and the Republic of the Philippines
entered into Service Contract 38 for the
exploration and extraction of petroleum in
northwestern Palawan. Two years later, Shell
discovered natural gas in the Camago-
Malampaya area and pursued its development
of the well under the Malampaya Natural Gas
Project. This entailed the construction and
installation of a pipeline spanning 504
kilometers which crossed the Oriental Mindoro
Sea.
In 2003, respondents Efren Jalos and 75 other
individuals (Jalos, et al) filed a complaint for
damages against Shell before the Regional Trial
Court (RTC). Jalos, et al claimed that they were
all subsistence fishermen from the coastal
barangay of Bansud, Oriental Mindoro whose
livelihood was adversely affected by the
construction and operation of Shell's natural
gas pipeline. They claimed that their fish catch
became few after the construction of the
pipeline. As a result, their average net income
per month fell from a high of P4,848.00 to only
P573.00. They said that "the pipeline greatly
affected biogenically hard-structured
communities such as coral reefs and led [to]
stress to the marine life in the Mindoro Sea."
They now have to stay longer and farther out at
sea to catch fish, as the pipeline's operation
has driven the fish population out of coastal
waters.
Instead of filing an answer, Shell moved for
dismissal of the complaint. It alleged that the
trial court had no jurisdiction over the action, as
it is a "pollution case" and the Pollution
Adjudication Board (PAB) has primary
jurisdiction. Shell also claimed that it could not
be sued pursuant to the doctrine of state
immunity since under Service Contract, it
served merely as an agent of the Philippine
government in the development of the
Malampaya gas reserves. Shell points out that
the complaint also states no cause of action
because it failed to specify any actionable
wrong or particular act or omission on Shell's
part.
The RTC dismissed the complaint ruling that the
action should be brought before the PAB, the
government agency vested with jurisdiction
over pollution-related cases.
The Court of Appeals (CA) reversed and upheld
the jurisdiction of the RTC over the action. It
said that Shell was not being sued for
committing pollution, but for constructing and
operating a natural gas pipeline that caused
fish decline and considerable reduction in the
fishermen's income. The claim for damages was
thus based on a quasi-delict over which the
regular courts have jurisdiction. The CA also
rejected Shell's assertion that the suit was
actually against the State and that it stated no
cause of action.
Shell moved for reconsideration of the CA's
decision but the same was denied. Hence, it
9
filed this petition for review under Rule 45. The
issues for resolution are:
(a) Whether or not the complaint is a pollution
case that falls within the primary jurisdiction of
the PAB;
(b) Whether or not the complaint sufficiently
alleges a cause of action against Shell; and
(c) Whether or not the suit is actually against
the State and is barred under the doctrine of
state immunity.
Held:
The case falls within the administrative
jurisdiction of the Pollution Adjudication
Board
1. Although the complaint of Jalos, et al does
not use the word "pollution" in describing the
cause of the alleged fish decline in the Mindoro
Sea, it is unmistakable based on their
allegations that Shell's pipeline produced some
kind of poison or emission that drove the fish
away from the coastal areas. While the
complaint did not specifically attribute to Shell
any specific act of "pollution," it alleged that
"the pipeline greatly affected biogenically hard-
structured communities such as coral reefs and
led [to] stress to the marine life in the Mindoro
Sea." This constitutes "pollution" as defined by
law.
2. Section 2(a) of P.D. 984
defines "pollution" as "any alteration of the
physical, chemical and biological properties of
any water x x x as will or is likely to create or
render such water x x x harmful, detrimental or
injurious to public health, safety or welfare or
which will adversely affect their utilization for
domestic, commercial, industrial, agricultural,
recreational or other legitimate purposes."
3. It is clear from this definition that the stress
to marine life claimed by Jalos, et al is caused
by some kind of pollution emanating from
Shell's natural gas pipeline. The pipeline, they
said, "greatly affected" or altered the natural
habitat of fish and affected the coastal waters'
natural function as fishing grounds.
Inevitably, in resolving Jalos, et al's claim for
damages, the proper tribunal must determine
whether or not the operation of the pipeline
adversely altered the coastal waters' properties
and negatively affected its life sustaining
function. The power and expertise needed to
determine such issue lies with the Pollution
Adjudication Board (PAB).
4. Executive Order 192 (1987) transferred to
the PAB the powers and functions of the
National Pollution and Control Commission
provided in R.A. 3931, as amended by P.D. 984.
These empowered the PAB to "determine the
location, magnitude, extent, severity, causes
and effects" of water pollution. Among its
functions is to "serve as arbitrator for the
determination of reparation, or restitution of the
damages and losses resulting from pollution."
In this regard, the PAB has the power to
conduct hearings, impose penalties for violation
of P.D. 984, and issue writs of execution to
enforce its orders and decisions. The PAB's final
decisions may be reviewed by the CA under
Rule 43 of the Rules of Court.
5. Jalos, et al had, therefore, an administrative
recourse before filing their complaint with the
regular courts. The laws creating the PAB and
vesting it with powers are wise. The definition
of the term "pollution" itself connotes the need
for specialized knowledge and skills, technical
and scientific, in determining the presence, the
cause, and the effects of pollution. These
knowledge and skills are not within the
competence of ordinary courts. Consequently,
resort must first be made to the PAB, which is
the agency possessed of expertise in
determining pollution-related matters.
6. To this extent, the failure of Jalos, et al to
allege in their complaint that they had first
taken resort to PAB before going to court means
that they failed to state a cause of action that
the RTC could act on. This warranted the
dismissal of their action.
The complaint sufficiently alleges a cause
of action against Shell
7. A cause of action is the wrongful act or
omission committed by the defendant in
violation of the primary rights of the plaintiff. Its
elements consist of: (1) a right existing in favor
of the plaintiff, (2) a duty on the part of the
defendant to respect the plaintiff's right, and
(3) an act or omission of the defendant in
violation of such right. To sustain a motion to
10
dismiss for lack of cause of action, however, the
complaint must show that the claim for relief
does not exist and not only that the claim was
defectively stated or is ambiguous, indefinite or
uncertain.
8. All the elements of a cause of action are
present. First, Jalos, et al had the right to the
preferential use of marine and fishing resources
which is guaranteed by no less than the
Constitution. Second, Shell had the correlative
duty to refrain from acts or omissions that could
impair Jalos, et al's use and enjoyment of the
bounties of the seas. Lastly, Shell's construction
and operation of the pipeline, which is an act of
physical intrusion into the marine environment,
is said to have disrupted and impaired the
natural habitat of fish and resulted in
considerable reduction of fish catch and income
for Jalos, et al.
9. While the complaint did not contain some
scientific explanation regarding how the
construction and operation of the pipeline
disturbed the waters and drove away the fish
from their usual habitat as the fishermen
claimed, the lack of particulars is not a ground
for dismissing the complaint.
10. The construction and operation of the
pipeline may, in itself, be a wrongful act that
could be the basis of Jalos, et al's cause of
action. The rules do not require that the
complaint establish in detail the causal link
between the construction and operation of the
pipeline, on the one hand, and the fish decline
and loss of income, on the other hand, it being
sufficient that the complaint states the ultimate
facts on which it bases its claim for relief. The
test for determining the sufficiency of a cause
of action rests on whether the complaint
alleges facts which, if true, would justify the
relief demanded. In this case, a valid judgment
for damages can be made in favor of Jalos, et
al, if the construction and operation of the
pipeline indeed caused fish decline and
eventually led to the fishermen's loss of
income, as alleged in the complaint.
Shell is not an agent of the State and
cannot invoke state immunity
11. Shell is not an agent of the Republic of the
Philippines. It is but a service contractor for the
exploration and development of one of the
country's natural gas reserves. While the
Republic appointed Shell as the exclusive party
to conduct petroleum operations in the
Camago-Malampayo area under the State's full
control and supervision, it does not follow that
Shell has become the State's "agent" within the
meaning of the law.
12. The essence of an agency is the agent's
ability to represent his principal and bring about
business relations between the latter and third
persons. It is this power to affect the principal's
contractual relations with third persons that
differentiates the agent from a service
contractor.
13. Shell's main undertaking under Service
Contract 38 is to "perform all petroleum
operations and provide all necessary
technology and finance" as well as other
connected services to the Philippine
government. Shell's primary obligation under
the contract is not to represent the Philippine
government for the purpose of transacting
business with third persons. Rather, its
contractual commitment is to develop and
manage petroleum operations on behalf of the
State.
14. Consequently, Shell is not an agent of the
Philippine government, but a provider of
services, technology and financing for the
Malampaya Natural Gas Project. It is not
immune from suit and may be sued for claims
even without the State's consent. Notably,
Service Contract 38 stipulated that payment of
claims and damages pursuant to a judgment
against Shell can be deducted from gross
proceeds. This signifies that the State itself
acknowledged the suability of Shell.
5. Case Summary
Saguisag vs. Executive Secretary Ochoa
(2015)
G.R. Nos. 212426 & 212444 | 2016-01-12
Subject: Power of judicial review; Requisites for
the exercise of the power of judicial review; An
actual case or controversy is present; Locus
standi; Petitions cannot qualify as citizens',
taxpayers', or legislators' suits; Petition
nonetheless raise issues involving matters of
transcendental importance; The role of the
11
President as the executor of the law includes
the duty to defend the State, for which purpose
he may use that power in the conduct of
foreign relations; Constitution prohibits the
entry of foreign military bases, troops or
facilities, except by way of a treaty concurred in
by the Senate; Constitutional restriction under
Sec 25, Art XVIII pertains to the entry of the
bases, troops, or facilities, and not to
the activities to be done after entry is
authorized; Treaties vs. Executive Agreement;
Constitutional restrictions on the power of the
President to conclude international agreements;
Power of the President to enter into binding
executive agreements without Senate
concurrence; President had the choice to enter
into EDCA by way of an executive agreement or
a treaty; Executive agreements may cover the
matter of foreign military forces if it merely
involves detail adjustments; EDCA as a valid
executive agreement; EDCA is consistent with
the content, purpose, and framework of the
MDT and the VFA; Admission of U.S. military
and civilian personnel into Philippine territory is
already allowed under the VFA; EDCA does not
guaratee admission of U.S. contractors into
Philippine territory; Authorized activities of U.S.
military and civilian personnel within Philippine
territory are in furtherance of the MDT and the
VFA; EDCA does not authorize permanent
presence of US forces and bases; Authorized
activities performed by US. contractors within
Philippine territory are subject to Philippines
laws and must be consistent with the MDT and
the VFA; EDCA is not a disguised version of the
Military Bases Agreement (MBA); Agreed
Locations under EDCA do not fall under the
concept of "foreign military bases and facilities"
which requires Senate concurrence under
Section 25, Art XVIII, 1987 Constitution; First
standard: independence from foreign control;
Second standard: Philippine sovereignty and
applicable law; Third standard: must respect
national security and territorial integrity; Public
franchise not required for telecommunication
system intended solely for the use of the U.S.;
Prohibition on introduction of nuclear weapons
into Philippine territory is respected;
Assumption of tax liability by the Philippine
government does not create a tax exemption
Facts:
The petitions allege that the Executive
Department committed grave abuse of
discretion in entering into the Enhanced
Defense Cooperation Agreement (EDCA) with
the United States of America (U.S.) in the form
of an executive agreement, instead of a treaty
concurred in by the Senate.
The EDCA authorizes the U.S. military forces to
have access to and conduct activities within
certain "Agreed Locations" in the country. It was
not transmitted to the Senate on the
executive's understanding that to do so was no
longer necessary. Accordingly, in June 2014, the
Department of Foreign Affairs (DFA) and the
U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary
internal requirements for the agreement to
enter into force in the two countries. President
Benigno S. Aquino III ratified EDCA on June 6,
2014. The Philippine and the U.S. governments
had yet to agree formally on the specific sites
of the Agreed Locations mentioned in the
agreement.
The issues presented before the court are:
(a) Whether the essential requisites for judicial
review are present
(b) Whether the President may enter into an
executive agreement on foreign military bases,
troops, or facilities
(c) Whether the provisions under EDCA are
consistent with the Constitution, as well as with
existing laws and treaties
Held:
I. Procedural Issues
Power of judicial review
1. Distinguished from the general notion of
judicial power, the power of judicial
review specially refers to both the authority
and the duty of this Court to determine whether
a branch or an instrumentality of government
has acted beyond the scope of the latter's
constitutional powers. As articulated in Section
1, Article VIII of the Constitution, the power of
judicial review involves the power to resolve
cases in which the questions concern the
constitutionality or validity of any treaty,
international or executive agreement, law,
presidential decree, proclamation, order,
12
instruction, ordinance, or regulation. In our
fundamental law, the role of the Court is to
determine whether a branch of government has
adhered to the specific restrictions and
limitations of the latter's power.
2. Under the 1987 Constitution, the scope of
the power of judicial review has been extended
to the determination of whether in matters
traditionally considered to be within the sphere
of appreciation of another branch of
government, an exercise of discretion has been
attended with grave abuse. The expansion of
this power has made the political question
doctrine "no longer the insurmountable
obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and
legislative actions from judicial inquiry or
review.
3. The "pillars" of the limitations on the power
of judicial review are:
1. That there be absolute necessity of
deciding a case
2. That rules of constitutional law shall
be formulated only as required by the facts of
the case
3. That judgment may not be sustained on
some other ground
4. That there be actual injury sustained by the
party by reason of the operation of the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of
constitutionality
(see Demetria v. Alba and Francisco v. House of
Representatives citing the concurring opinion
of U.S. Supreme Court Justice Brandeis in
Ashwander v. Tennessee Valley Authority)
Requisites for the exercise of the power of
judicial review
4. The power of judicial review may only be
exercised when the following four stringent
requirements are satisfied:
(a) there is an actual case or controversy
(b) petitioners possess locus standi
(c) the question of constitutionality is raised at
the earliest opportunity; and
( d) the issue of constitutionality is the lis mota
of the case.
An actual case or controversy is present
5. The focus of this requirement is the ripeness
for adjudication of the matter at hand, as
opposed to its being merely conjectural or
anticipatory. The case must involve a definite
and concrete issue involving real parties with
conflicting legal rights and legal claims
admitting of specific relief through a decree
conclusive in nature. It should not equate with a
mere request for an opinion or advice on what
the law would be upon an abstract,
hypothetical, or contingent state of facts.
6. The OSG contends that the nonparticipation
of the Senators in the present petitions only
confirms that even they believe that EDCA is a
binding executive agreement that does not
require their concurrence.
7. It must be emphasized that the Senate has
already expressed its position through SR 105.
Through the Resolution, the Senate has taken a
position contrary to that of the OSG. As the
body tasked to participate in foreign affairs by
ratifying treaties, its belief that EDCA infringes
upon its constitutional role indicates that an
actual controversy - albeit brought to the Court
by non-Senators, exists.
8. The matter before us involves an actual case
or controversy that is already ripe for
adjudication. The Executive Department has
already sent an official confirmation to the U.S.
Embassy that "all internal requirements of the
Philippines x x x have already been complied
with." By this exchange of diplomatic notes, the
Executive Department effectively performed
the last act required under Article XII(l) of EDCA
before the agreement entered into
force. Section 25, Article XVIII of the
Constitution, is clear that the presence of
foreign military forces in the country shall only
be allowed by virtue of a treaty concurred in by
the Senate. Hence, the performance of an
official act by the Executive Department that
led to the entry into force of an executive
agreement was sufficient to satisfy the actual
case or controversy requirement.
13

Locus standi
9. The question of locus standi or legal
standing focuses on the determination of
whether those assailing the governmental act
have the right of appearance to bring the
matter to the court for adjudication. They must
show that they have a personal and substantial
interest in the case, such that they have
sustained or are in immediate danger of
sustaining, some direct injury as a consequence
of the enforcement of the challenged
governmental act.
10. Here, it would be insufficient to show that
the law or any governmental act is invalid, and
that petitioners stand to suffer in some
indefinite way. They must show that they have
a particular interest in bringing the suit, and
that they have been or are about to be denied
some right or privilege to which they are
lawfully entitled, or that they are about to be
subjected to some burden or penalty by reason
of the act complained of.
Petitions cannot qualify as citizens',
taxpayers', or legislators' suits
11. The present petitions cannot qualify as
citizens', taxpayers', or legislators'
suits; the Senate as a body has the requisite
standing, but considering that it has not
formally filed a pleading to join the suit, as it
merely conveyed to the Supreme Court its
sense that EDCA needs the Senate's
concurrence to be valid, petitioners continue to
suffer from lack of standing.
(a) Petition cannot qualify as Citizen's
suits
12. In assailing the constitutionality of a
governmental act, petitioners suing as citizens
may dodge the requirement of having to
establish a direct and personal interest if they
show that the act affects a public right. But
aside from general statements that the
petitions involve the protection of a public
right, and that their constitutional rights as
citizens would be violated, petitioners fail to
make any specific assertion of a particular
public right that would be violated by the
enforcement of EDCA. For their failure to do so,
the present petitions cannot be considered by
the Court as citizens' suits that would justify a
disregard of the aforementioned requirements.
(b) Petition cannot qualify as Taxpayer's
suits
13. A taxpayer's suit concerns a case in which
the official act complained of directly involves
the illegal disbursement of public funds derived
from taxation. Applying that principle to this
case, petitioners must establish that EDCA
involves the exercise by Congress of its taxing
or spending powers.
14. The petitions cannot qualify as taxpayers'
suits. A taxpayers' suit contemplates a situation
in which there is already an appropriation or a
disbursement of public funds. A reading of
Article X(l) of EDCA would show thatthere has
been neither an appropriation nor an
authorization of disbursement of funds.
Specifically, EDCA provides that All obligations
under this Agreement are subject to the
availability of appropriated funds authorized for
these purposes Hence, under the agreement,
before there can even be a disbursement of
public funds, there must first be a legislative
action. Until and unless the Legislature
appropriates funds for EDCA, or unless
petitioners can pinpoint a specific item in the
current budget that allows expenditure under
the agreement, we cannot at this time rule that
there is in fact an appropriation or a
disbursement of funds that would justify the
filing of a taxpayers' suit.
(c) Petition cannot qualify as Legislator's
suits
15. In a legislators' suit, those Members of
Congress who are challenging the official
act have standing only to the extent that the
alleged violation impinges on their right to
participate in the exercise of the powers of the
institution of which they are members.
Legislators are allowed to sue to question the
validity of any official action, which they claim
infringes their prerogatives as legislators. As
legislators, they must clearly show that there
was a direct injury to their persons or the
institution to which they belong.
14
16. The power to concur in a treaty or an
international agreement is an institutional
prerogative granted by the Constitution to the
Senate, not to the entire Legislature. The
injured party would be the Senate as an
institution or any of its incumbent members, as
it is the Senate's constitutional function that is
allegedly being violated. Petitioners, not being
members of the Senate, do not have any legal
standing to file the suits concerning the lack of
Senate concurrence in EDCA (see Pimentel v.
Office of the Executive Secretary)
Petition nonetheless raise issues involving
matters of transcendental importance
17. In a number of cases, the Court has taken a
liberal stance towards the requirement of legal
standing, especially when paramount interest is
involved. When those who challenge the official
act are able to craft an issue of transcendental
significance to the people, the Court may
exercise its sound discretion and take
cognizance of the suit. It may do so in spite of
the inability of the petitioners to show that they
have been personally injured by the operation
of a law or any other government act.
18. Petitioners have presented serious
constitutional issues that provide ample
justification for the Court to set aside the rule
on standing. The transcendental importance of
the issues presented here is rooted in the
Constitution itself. Section 25, Article XVIII
thereof, cannot be any clearer: there is a much
stricter mechanism required before foreign
military troops, facilities, or bases may be
allowed in the country. The DFA has already
confirmed to the U.S. Embassy that "all internal
requirements of the Philippines x x x have
already been complied with." It behooves the
Court in this instance to determine whether
there was grave abuse of discretion on the part
of the Executive Department.
II. Substantive Issues
The role of the President as the executor
of the law includes the duty to defend the
State, for which purpose he may use that
power in the conduct of foreign relations
19. Throughout the different versions of the
Philippine Constitution, the supreme executive
power has been specifically vested in the
President of the Philippines (formerly, Governor-
General). One of the principal functions of the
supreme executive is the responsibility for
the faithful execution of the laws as embodied
by the oath of office.
20. The duty to faithfully execute the laws of
the land is inherent in executive power and is
intimately related to the other executive
functions. More important, this mandate is self-
executory by virtue of its being inherently
executive in nature. The import of this
characteristic is that the manner of the
President's execution of the law, even if not
expressly granted by the law, is justified by
necessity and limited only by law, since the
President must "take necessary and proper
steps to carry into execution the law."
21. The presidential role in foreign affairs is
dominant and the President is traditionally
accorded a wider degree of discretion in the
conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less
stringent standards, lest their judicial
repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture
of confidence, national embarrassment and a
plethora of other problems with equally
undesirable consequences. (see Vinuya v.
Romulo)
Constitution prohibits the entry of foreign
military bases, troops or facilities, except
by way of a treaty concurred in by the
Senate
22. Despite the President's roles as defender of
the State and sole authority in foreign relations,
the 1987 Constitution expressly limits his ability
in instances when it involves the entry of
foreign military bases, troops or facilities.
23. The initial limitation is found in Art
VII, Section 21 of the provisions on the
Executive Department: "No treaty or
international agreement shall be valid and
effective unless concurred in by at least two-
thirds of all the Members of the Senate."
24. The specific limitation is given by Art
XVIII, Section 25 under the Transitory
Provisions, which reads as follows:
15
SECTION 25. After the expiration in 1991 of the
Agreement between the Republic of the
Philippines and the United States of America
concerning Military Bases, foreign military
bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of
the votes cast by the people in a national
referendum held for that purpose, and
recognized as a treaty by the other contracting
State.
25. It is quite plain that the Transitory
Provisions of the 1987 Constitution intended to
add to the basic requirements of a treaty under
Section 21 of Article VII. This means that both
provisions must be read as additional
limitations to the President's overarching
executive function in matters of defense and
foreign relations.
Constitutional restriction under Sec 25,
Art XVIII pertains to the ENTRY of the
bases, troops, or facilities, and not to
the activities to be done AFTER entry is
authorized
26. Under the principles of constitutional
construction, of paramount consideration is the
plain meaning of the language expressed in the
Constitution, or the verba legis rule. Thus, if
taken literally, the phrase "shall not be
allowed in the Philippines" plainly refers to
the entry of bases, troops, or facilities in the
country.
27. It is evident that the constitutional
restriction refers solely to the initial entry of the
foreign military bases, troops, or facilities. Once
entry is authorized, the subsequent acts are
thereafter subject only to the limitations
provided by the rest of the Constitution and
Philippine law, and not to the Section 25
requirement of validity through a treaty.
28. The Visiting Forces Agreement (VFA) has
already allowed the entry of troops in the
Philippines. The VFA provides that visiting US
forces may sojourn in Philippine territory for
purposes other than military, i.e., joint training
exercises like the Balikatan (see Lim v.
Executive Secretary)
Treaties vs. Executive Agreement
29. Treaties are formal documents which
require ratification with the approval of two-
thirds of the Senate.Executive
agreements become binding through
executive action without the need of a vote by
the Senate or by Congress. (see Commissioner
of Customs v. Eastern Sea Trading)
30. Executive agreements must remain
traceable to an express or implied authorization
under the Constitution, statutes, or treaties.
The absence of these precedents puts the
validity and effectivity of executive agreements
under serious question for the main function of
the Executive is to enforce the Constitution and
the laws enacted by the Legislature, not to
defeat or interfere in the performance of these
rules. In turn, executive agreements cannot
create new international obligations that are
not expressly allowed or reasonably implied in
the law they purport to implement.
31. Treaties are, by their very nature,
considered superior to executive agreements.
Treaties are products of the acts of the
Executive and the Senate unlike executive
agreements, which are solely executive
actions. Because of legislative participation
through the Senate, a treaty is regarded as
being on the same level as a statute. If there is
an irreconcilable conflict, a later law or treaty
takes precedence over one that is prior. An
executive agreement is treated
differently. Executive agreements that are
inconsistent with either a law or a treaty are
considered ineffective. Both types of
international agreement are nevertheless
subject to the supremacy of the Constitution.
Constitutional restrictions on the power of
the President to conclude international
agreements
32. Although the Chief Executive wields the
exclusive authority to conduct our foreign
relations, this power must still be exercised
within the context and the parameters set by
the Constitution, as well as by existing
domestic and international laws. There are
constitutional provisions that restrict or limit
the President's prerogative in concluding
16
international agreements, such as those that
involve the following:
a. The policy of freedom from nuclear weapons
within Philippine territory
b. The fixing of tariff rates, import and export
quotas, tonnage and wharfage dues, and other
duties or imposts, which must be pursuant to
the authority granted by Congress
c. The grant of any tax exemption, which must
be pursuant to a law concurred in by a majority
of all the Members of Congress
d. The contracting or guaranteeing, on behalf of
the Philippines, of foreign loans that must be
previously concurred in by the Monetary Board
e. The authorization of the presence of foreign
military bases, troops, or facilities in the
country must be in the form of a treaty duly
concurred in by the Senate.
f. For agreements that do not fall under
paragraph 5, the concurrence of the Senate is
required, should the form of the government
chosen be a treaty.
Power of the President to enter into
binding executive agreements without
Senate concurrence
33. In Commissioner of Customs v. Eastern Sea
Trading , executive agreements are defined
as "international agreements
embodying adjustments of detail carrying out
well-established national policies and traditions
and those involving arrangements of a more or
less temporary nature. In Bayan Muna v.
Romulo, this Court further clarified that
executive agreements can cover a wide array of
subjects that have various scopes and
purposes.
34. Executive agreements may dispense with
the requirement of Senate concurrence
because they merely involve arrangements on
the implementation of existing policies, rules,
laws, or agreements. They are concluded (1) to
adjust the details of a treaty; (2) pursuant to or
upon confirmation by an act of the Legislature;
or (3) in the exercise of the President's
independent powers under the Constitution.
The raison d'etre of executive agreements
hinges on prior constitutional or legislative
authorizations.
35. The term "international agreements" as
contemplated in Section 21, Article VII, does not
include executive agreements.
President had the choice to enter into
EDCA by way of an executive agreement
or a treaty
36. There are no hard and fast rules on the
propriety of entering, on a given subject, into a
treaty or an executive agreement as an
instrument of international relations. The
primary consideration in the choice of the form
of agreement is the parties' intent and desire to
craft an international agreement in the form
they so wish to further their respective
interests. Verily, the matter of form takes a
back seat when it comes to effectiveness and
binding effect of the enforcement of a treaty an
or executive agreement, as the parties in either
international agreement each labor under the
pacta sunt servanda principle. (see Bayan
Muna v. Romulo)
37. In the exercise of its power of judicial
review, the Court does not look into whether an
international agreement should be in the form
of a treaty or an executive agreement, save in
cases in which the Constitution or a statute
requires otherwise. Rather, in view of the vast
constitutional powers and prerogatives granted
to the President in the field of foreign affairs,
the task of the Court is to determine whether
the international agreement is consistent with
the applicable limitations.
Executive agreements may cover the
matter of foreign military forces if it
merely involves detail adjustments
38. Section 25, Article XVIII of the Constitution
contains stringent requirements that must be
fulfilled by the international agreement allowing
the presence of foreign military bases, troops,
or facilities in the Philippines: (a) the agreement
must be in the form of a treaty, and (b) it must
be duly concurred in by the Senate.
39. If the agreement is not covered by the
above situation, then the President may choose
17
the form of the agreement (i.e., either an
executive agreement or a treaty), provided
that the agreement dealing with foreign military
bases, troops, or facilities is not the principal
agreement that first allows their entry or
presence in the Philippines.
40. The executive agreement must not go
beyond the parameters, limitations, and
standards set by the law and/or treaty that the
former purports to implement; and must not
unduly expand the international obligation
expressly mentioned or necessarily implied in
the law or treaty.
41. The executive agreement must be
consistent with the Constitution, as well as with
existing laws and treaties.
EDCA as a valid executive agreement
42. In light of the President's choice to enter
into EDCA in the form of an executive
agreement, respondents (Executive branch)
carry the burden of proving that it is a mere
implementation of existing laws and treaties
concurred in by the Senate. EDCA must be
carefully dissected to ascertain if it remains
within the legal parameters of a valid executive
agreement.
(a) EDCA is consistent with the content,
purpose, and framework of the MDT and
the VFA
43. An executive agreement may not be used
to amend a treaty. Accordingly, the EDCA shall
be scrutinized by studying "the framework of
the treaty antecedents to which the Philippines
bound itself" i.e., the Military Defense Treaty
(MDT) and the Visiting Forces Agreement (VFA).
44. It is pointed in the dissenting opinion that
the VFA contemplates the entry of troops for
training exercises, whereas EDCA allows the
use of territory for launching military and
paramilitary operations conducted in other
states. Jurisprudence however has established
that combat-related activities, as opposed to
actual combat, were allowed under the MDT
and VFA. Hence, even if EDCA was borne of
military necessity, it cannot be said to have
strayed from the intent of the VFA since EDCA's
combat-related components are allowed under
the treaty.
45. Moreover, both the VFA and EDCA are
silent on what these activities actually are. Both
the VFA and EDCA deal with the presence of
U.S. forces within the Philippines, but make no
mention of being platforms for activity beyond
Philippine territory. While it may be that, as
applied, military operatjons under either the
VFA or EDCA would be carried out in the future,
the scope of judicial review does not cover
potential breaches of discretion but only actual
occurrences or blatantly illegal provisions.
Hence,we cannot invalidate EDCA on the basis
of the potentially abusive use of its provisions.
46. It was also averred that EDCA supposedly
introduces a new concept not contemplated in
the VFA or the MDT, i.e, Agreed Locations,
Contractors, Pre-positioning, and Operational
Control. It must be clarified that the terms and
details used by an implementing agreement
need not be found in the mother treaty. They
must be sourced from the authority derived
from the treaty, but are not necessarily
expressed word-for-word in the mother treaty.
(b) Admission of U.S. military and civilian
personnel into Philippine territory is
already allowed under the VFA
47. By virtue of Articles I and III of the VFA, the
Philippines already allows U.S. military and
civilian personnel to be "temporarily in the
Philippines," so long as their presence is "in
connection with activities approved by the
Philippine Government." The VFA does not limit
their temporary presence to specific locations.
48. The admission and presence of U.S.
military and civilian personnel in Philippine
territory are already allowed under the VFA, the
treaty supposedly being implemented by EDCA.
What EDCA has effectively done, in fact, is
merely provide the mechanism to identify the
locations in which U.S. personnel may perform
allowed activities pursuant to the VFA. As the
implementing agreement, it regulates and
limits the presence of U.S. personnel in the
country.
(c) EDCA does not guaratee admission of
U.S. contractors into Philippine territory
18

49. EDCA recognizes the presence in the
country of three distinct classes of individuals
who will be conducting different types of
activities within the Agreed Locations: (1) U.S.
military personnel; (2) U.S. civilian personnel;
and (3) U.S. contractors.
50. Of the three aforementioned classes of
individuals who will be conducting certain
activities within the Agreed Locations, we note
that only U.S. contractors are not explicitly
mentioned in the VFA. This does not mean,
though, that the recognition of their presence
under EDCA is ipso facto an amendment of the
treaty, and that there must be Senate
concurrence they before are allowed to enter
the country.
51. Nowhere in EDCA are U.S. contractors
guaranteed immediate admission into the
Philippines. Articles III and IV, in fact, merely
grant them the right of access to, and the
authority to conduct certain activities within the
Agreed Locations. Since Article II(3) of EDCA
specifically leaves out U.S. contractors from the
coverage of the VFA, they shall not be granted
the same entry accommodations and privileges
as those enjoyed by U.S. military and civilian
personnel under the VFA.
52. Consequently, it is neither mandatory nor
obligatory on the part of the Philippines to
admit U.S. contractors into the country. We
emphasize that the admission of aliens into
Philippine territory is "a matter of pure
permission and simple tolerance which creates
no obligation on the part of the government to
permit them to stay." Unlike U.S. personnel who
are accorded entry accommodations, U.S.
contractors are subject to Philippine
immigration laws. The latter must comply with
our visa and passport regulations and prove
that they are not subject to exclusion under any
provision of Philippine immigration laws. The
President may also deny them entry pursuant
to his absolute and unqualified power to
prohibit or prevent the admission of aliens
whose presence in the country would be
inimical to public interest.
53. The President may exercise the plenary
power to expel or deport U.S. contractors as
may be necessitated by national security,
public safety, public health, public morals, and
national interest. They may also be deported if
they are found to be illegal or undesirable
aliens pursuant to the Philippine Immigration
Act267 and the Data Privacy Act. In contrast,
Article 111(5) of the VFA requires a request for
removal from the Philippine government before
a member of the U.S. personnel may be
"dispos[ed] xx x outside of the Philippines.
(d) Authorized activities of U.S. military
and civilian personnel within Philippine
territory are in furtherance of the MDT
and the VFA
55. Manifest in the provisions of the MDT and
VFA are the abundance of references to the
creation of further "implementing
arrangements" including the identification of
"activities to be approved by the Philippine
Government."
56. The Court has already settled in Lim v.
Executive Secretary that the phrase "activities
approved by the Philippine Government" under
Article I of the VFA was intended to be
ambiguous in order to afford the parties
flexibility to adjust the details of the purpose of
the visit of U.S. personnel. In this manner,
visiting US forces may sojourn in Philippine
territory for purposes other than military.
57. The "activities" referred to in the VFA treaty
are meant to be specified and identified in
further agreements. EDCA is one such
agreement. EDCA seeks to be an instrument
that enumerates the Philippine-approved
activities of U.S. personnel referred to in the
VFA.
58. After a thorough examination of the
content, purpose, and framework of the MDT
and the VFA, we find that EDCA has remained
within the parameters set in these two treaties.
Just like the Terms of Reference mentioned
inLim, mere adjustments in detail to implement
the MDT and the VFA can be in the form of
executive agreements.
(e) EDCA does not authorize permanent
presence of US forces and bases
59. Petitioners assert that the VFA
contemplated mere temporary visits from U.S.
19
forces, whereas EDCA allows an unlimited
period for U.S. forces to stay in the Philippines.
The provisions of EDCA directly contradict this
argument by limiting itself to 10 years of
effectivity. Although this term is automatically
renewed, the process for terminating the
agreement is unilateral and the right to do so
automatically accrues at the end of the 10 year
period. Clearly, this method does not create a
permanent obligation. EDCA merely follows the
practice of other states in not specifying a non-
extendible maximum term. This practice,
however, does not automatically grant a badge
of permanency to its terms.
60. Moreover, EDCA merely grants American
troops, ships and planes rotational access to
facilities of the Armed Forces of the Philippines -
but not permanent bases which are prohibited
under the Philippine Constitution.
61. It could not have been by chance that
the VFA does not include a maximum time limit
with respect to the presence of U.S. personnel
in the country. We construe this lack of
specificity as a deliberate effort on the part of
the Philippine and the U.S. governments to
leave out this aspect and reserve it for the
"adjustment in detail" stage of the
implementation of the treaty.
(f) Authorized activities performed by US.
Contractors within Philippine territory are
subject to Philippines laws and must be
consistent with the MDT and the VFA
62. Petitioners also raise concerns about the
U.S. government's purported practice of hiring
private security contractors in other countries.
They claim that these contractors have been
implicated in incidents or scandals in other
parts of the globe involving rendition, torture
and other human rights violations. They also
assert that these contractors employ
paramilitary forces in other countries where
they are operating.
63. EDCA requires that all activities within
Philippine territory be in accordance with
Philippine law. This means that certain
privileges denied to aliens are likewise denied
to foreign military contractors. Hence, even
when U.S. contractors are granted access to the
Agreed Locations, all their activities must be
consistent with Philippine laws and regulations
and pursuant to the MDT and the VFA.
64. The concerns raised by petitioners do not
give the Court enough justification to strike
down EDCA. The courts cannot take judicial
notice of claims aired in news reports for the
simple reason that facts must be established in
accordance with the rules of evidence. Courts
also cannot move one step ahead and
speculate that the alleged illegal activities of
these contractors in other countries would
likewise take place in the Philippines. Making
sure that U.S. contractors comply with
Philippine laws is a function of law enforcement.
EDCA does not stand in the way of law
enforcement.
65. To emphasize, U.S. contractors are
explicitly excluded from the coverage of the
VFA. As visiting aliens, their entry, presence,
and activities are subject to all laws and
treaties applicable within the Philippine
territory. Our penal laws, labor laws, and
immigrations laws apply to them and therefore
limit their activities here.
(g) EDCA is not a disguised version of the
Military Bases Agreement (MBA)
66. Petitioners Saguisag et al. claim that EDCA
permits the establishment of U.S. military bases
through the "euphemistically" termed "Agreed
Locations. " Alluding to the definition of this
term in Article II( 4) of EDCA, they point out that
these locations are actually military bases, as
the definition refers to facilities and areas to
which U.S. military forces have access for a
variety of purposes. Hence, EDCA is but a
disguised version of the 1947 Military Bases
Agreement (MBA).
67. Under the MBA, the U.S. had the right to
construct, operate, maintain, utilize, occupy,
garrison, and control the bases. The so-called
parallel provisions of EDCA allow only
operational control over the Agreed Locations
specifically for construction activities. They do
not allow the overarching power to operate,
maintain, utilize, occupy, garrison, and control
a base with full discretion.
68. Under the MBA, the U.S. retains ownership
if it paid for the facility. Under EDCA, an
20
immovable is owned by the Philippines, even if
built completely on the back of U.S. funding.
This is consistent with the constitutional
prohibition on foreign land ownership.
69. Under the MBA, the U.S. retained all rights
of jurisdiction in and over Philippine territory
occupied by American bases. In contrast, under
EDCA, the U.S. does not enjoy any such right
over any part of the Philippines in which its
forces or equipment may be found.
70. Under the MBA, the U.S. and the
Philippines were visibly not on equal footing
when it came to deciding whether to expand or
to increase the number of bases, as the
Philippines may be compelled to negotiate with
the U.S. the moment the latter requested an
expansion of the existing bases or to acquire
additional bases. In EDCA, U.S. access is purely
at the invitation of the Philippines.
71. Under the MBA, the U.S. had complete
control over its military bases, and the U.S.
could effectively prevent Philippine authorities
from entering those bases. In EDCA, the
Philippines is guaranteed access over the entire
area of the Agreed Locations.
72. Under the MBA, the U.S. was given the
authority to use Philippine territory for
additional staging areas, bombing and gunnery
ranges. No such right is given under EDCA.
73. Under the MBA, the U.S. was given the
right, power, and authority to control and
prohibit the movement and operation of all
types of vehicles within the vicinity of the
bases. The U.S. does not have any right, power,
or authority to do so under EDCA.
74. Under the MBA, the U.S. had the right to
improve and deepen the harbors, channels,
entrances, and anchorages; and to construct or
maintain necessary roads and bridges that
would afford it access to its military bases.
Under EDCA, the U.S. is merely given
temporary access to land and facilities
(including roads, ports, and airfields).
75. Under the MBA, the U.S. was granted the
automatic right to use any and all public
utilities, services and facilities, airfields, ports,
harbors, roads, highways, railroads, bridges,
viaducts, canals, lakes, rivers, and streams in
the Philippines in the same manner that
Philippine military forces enjoyed that right. No
such arrangement appears in EDCA. In fact, it
merely extends to U.S. forces temporary access
to public land and facilities when requested.
76. Under EDCA, the U.S. no longer has the
right, power, and authority to construct, install,
maintain, and employ any type of facility,
weapon, substance, device, vessel or vehicle,
or system unlike in the MBA. EDCA merely
grants the U.S., through bilateral security
mechanisms, the authority to undertake
construction, alteration, or improvements on
the Philippine-owned Agreed Locations.
77. EDCA does not allow the U.S. to acquire, by
condemnation or expropriation proceedings,
real property belonging to any private person.
The old MBA gave this right to the U.S.
78. EDCA does not allow the U.S. to unilaterally
bring into the country non-Philippine nationals
who are under its employ, together with their
families, in connection with the construction,
maintenance, or operation of the bases. EDCA
strictly adheres to the limits under the VFA.
79. EDCA does not allow the U.S. to exercise
jurisdiction over any offense committed by any
person within the Agreed Locations, unlike in
the former MBA.
80. EDCA does not allow the U.S. to operate
military post exchange (PX) facilities, which is
free of customs duties and taxes, unlike what
the expired MBA expressly allowed.
Agreed Locations under EDCA do not fall
under the concept of "foreign military
bases and facilities" which requires
Senate concurrence under Section 25, Art
XVIII, 1987 Constitution
81. Section 25, Article XVIII of the 1987
Constitution is explicit that foreign military
bases, troops, or facilities shall not be allowed
in the Philippines, except under a treaty duly
concurred in by the Senate. Notably, Section 25
does not define what is meant by a "foreign
military facility or base." At the time of its
crafting of the Constitution, the 1986
Constitutional Commission had a clear idea of
21
what exactly it was restricting. Its point of
reference was clearly areas covered by the
1947 MBA as amended. In 1991, the Philippine
Senate rejected the successor treaty of the
1947 MBA that would have allowed the
continuation of U.S. bases in the Philippines.
82. The latest agreement is EDCA, which
proposes a novel concept termed "Agreed
Locations." The bone of contention is whether
the Agreed Locations are, from a legal
perspective, foreign military facilities or bases.
This legal framework triggers Section 25, Article
XVIII, and makes Senate concurrence a sine qua
non.
(a) First standard: independence from
foreign control
83. The heart of the constitutional restriction
on foreign military facilities and bases is the
assertion of independence from the U.S. and
other foreign powers, as independence is
exhibited by the degree of foreign control
exerted over these areas. The essence of that
independence is self-governance and self-
control.
84. The Agreed Locations are contained within
a property for public use, be it within a
government military camp or property that
belongs to the Philippines. EDCA explicitly
provides that ownership of the Agreed
Locations remains with the Philippine
movement. What U.S. personnel have a right
to, pending mutual agreement, is access to and
use of these locations. EDCA, in respect of its
provisions on Agreed Locations, is essentially a
contract of use and access. The activities
carried out within these locations are subject to
agreement as authorized by the Philippine
movement.
85. Under Article VI(3) of EDCA, U.S. forces are
authorized to act as necessary for "operational
control and defense." The legal concept
of operational control involves authority over
personnel in a commander-subordinate
relationship and does not include control over
the Agreed Locations in this particular case.
Though not necessarily stated in EDCA
provisions, this interpretation is readily implied
by the reference to the taking of "appropriate
measures to protect United States forces and
United States contractors.
86. Petitioners mistakenly equate "operational
control" with "effective command and
control." Operational controlis the delegable
aspect of combatant command,
while command and control is the overall power
and responsibility exercised by the commander
with reference to a mission. Operational control
is a narrower power and must be given, while
command and control is plenary and vested in
a commander. Operational control does not
include the planning, programming, budgeting,
and execution process input; the assignment of
subordinate commanders; the building of
relationships with Department of Defense
agencies; or the directive authority for logistics,
whereas these factors are included in the
concept of command and control.
87. EDCA indeed contains a specific provision
that gives to the U.S. operational control within
the Agreed Locations during construction
activities. Despite this grant of operational
control to the U.S., it must be emphasized that
the grant is only for construction activities.
The narrow and limited instance wherein the
U.S. is given operational control within an
Agreed Location cannot be equated with foreign
military control.
88. Limited control does not violate the
Constitution. The fear of the commissioners was
total control, to the point that the foreign
military forces might dictate the terms of their
acts within the Philippines. More important,
limited control does not mean an abdication or
derogation of Philippine sovereignty and legal
jurisdiction over the Agreed Locations. It is
more akin to the extension of diplomatic
courtesies and rights to diplomatic agents,
which is a waiver of control on a limited scale
and subject to the terms of the treaty.
(b) Second standard: Philippine
sovereignty and applicable law
89. From the text of EDCA itself, Agreed
Locations are territories of the Philippines that
the U.S. forces are allowed to access and use.
By withholding ownership of these areas and
retaining unrestricted access to them, the
government asserts sovereignty over its
22
territory. That sovereignty exists so long as the
Filipino people exist.
90. The Philippines retains primary
responsibility for security with respect to the
Agreed Locations. Hence,Philippine law remains
in force therein, and it cannot be said that
jurisdiction has been transferred to the U.S.
(c) Third standard: Must respect national
security and territorial integrity
91. Any armed attack by forces of a third state
against an Agreed Location can only be
legitimate under international humanitarian law
if it is against a bona fide U.S. military base,
facility, or installation that directly contributes
to the military effort of the U.S. Moreover, the
third state's forces must take all measures to
ensure that they have complied with the
principle of distinction (between combatants
and non-combatants).
92. There is, then, ample legal protection for
the Philippines under international law that
would ensure its territorial integrity and
national security in the event an Agreed
Location is subjected to attack. As EDCA stands,
it does not create the situation so feared by
petitioners - one in which the Philippines, while
not participating in an armed conflict, would be
legitimately targeted by an enemy of the U.S
93. Concerns on national security problems
that arise from foreign military equipment
being present in the Philippines must likewise
be contextualized. Most significantly, the VFA
already authorizes the presence of U.S. military
equipment in the country.
Public franchise not required for
telecommunication system intended solely
for the use of the U.S.
94. In reference to the issue on
telecommunications, suffice it to say that the
initial impression of the facility adverted to
does appear to be one of those that require a
public franchise by way of congressional action
under Section 11, Article XII of the Constitution.
As respondents submit, however, the system
referred to in the agreement does not provide
telecommunications services to the public for
compensation. It is clear from Article VIl(2) of
EDCA that the telecommunication system is
solely for the use of the U.S. and not the public
in general, and that this system will not
interfere with that which local operators use.
Consequently, a public franchise is no longer
necessary.
Prohibition on introduction of nuclear
weapons into Philippine territory is
respected
95. The charge that EDCA allows nuclear
weapons within Philippine territory is entirely
speculative. It is noteworthy that the
agreement in fact specifies that the
prepositioned materiel shall not include nuclear
weapons. Petitioners argue that only
prepositioned nuclear weapons are prohibited
by EDCA, and that, therefore, the U.S. would
insidiously bring nuclear weapons to Philippine
territory. The general prohibition on nuclear
weapons, whether prepositioned or not, is
already expressed in the 1987 Constitution. It
would be unnecessary or superfluous to include
all prohibitions already in the Constitution or in
the law through a document like EDCA.
Assumption of tax liability by the
Philippine government does not create a
tax exemption
96. petitioners allege that EDCA creates a tax
exemption, which under the law must originate
from Congress. EDCA simply states that
the taxes on the use of water, electricity, and
public utilities are for the account of the
Philippine Government. This provision creates a
situation in which a contracting party assumes
the tax liability of the other. In National Power
Corporation v. Province of Quezon, the court
concluded that an enforceable assumption of
tax liability requires the party assuming the
liability to have actual interest in the property
taxed. This rule applies to EDCA, since the
Philippine Government stands to benefit not
only from the structures to be built thereon or
improved, but also from the joint training with
U.S. forces, disaster preparation, and the
preferential use of Philippine suppliers. Hence,
the provision on the assumption of tax liability
does not constitute a tax exemption as
petitioners have posited.
6.Case Summary
23
Pamatong vs Comelec (2004)
G.R. No. 161872 | 2004-04-13
Subject: There is no constitutional right to run
for or hold public office; Policy provisions under
the Constitution are generally not self-executing
and not give rise to judicially enforceable
rights; "Equal access" provision requires
implementing legislation to make it operative;
Nuisance candidate prohibition is a valid
limitation on the privilege to seek elective
office; Prohibition against nuisance candidates;
Question of whether a candidate is a nuisance
candidate or not is both legal and factual;
Validity of the form for the certificate of
candidacy
Facts:
Rev. Elly Velez Pamatong (petitioner) filed his
Certificate of Candidacy for President for the
2004 elections. The Commission on Elections
(COMELEC) refused to give due course to
petitioner's Certificate of Candidacy in its
Resolution No. 6558 . The decision, however,
was not unanimous since Commissioners
Tancangco and Sadain voted to include
petitioner as they believed he had parties or
movements to back up his candidacy.
The COMELEC denied petitioner's Motion for
Reconsideration. The COMELEC declared
petitioner and thirty-five (35) others nuisance
candidates who could not wage a nationwide
campaign and/or are not nominated by a
political party or are not supported by a
registered political party with a national
constituency.
Petitioner filed the present Petition For Writ of
Certiorari. Petitioner alleged that COMELEC
resolutions were rendered in violation of his
right to "equal access to opportunities for
public service" under Section 26, Article II of
the 1987 Constitution by limiting the number of
qualified candidates only to those who can
afford to wage a nationwide campaign and/or
are nominated by political parties.
Petitioner likewise attacks the validity of the
form for the Certificate of Candidacy prepared
by the COMELEC. Petitioner claims that the
form does not provide clear and reasonable
guidelines for determining the qualifications of
candidates since it does not ask for the
candidate's bio-data and his program of
government.
Held:
There is no constitutional right to run for
or hold public office
1. Implicit in the petitioner's invocation of the
constitutional provision ensuring "equal access
to opportunities for public office" is the claim
that there is a constitutional right to run for or
hold public office and, particularly in his case,
to seek the presidency. There is none. What is
recognized is merely a privilege subject to
limitations imposed by law. Section 26, Article II
of the Constitution neither bestows such a right
nor elevates the privilege to the level of an
enforceable right. There is nothing in the plain
language of the provision which suggests such
a thrust or justifies an interpretation of the sort.
Policy provisions under the Constitution
are generally not self-executing and not
give rise to judicially enforceable rights
2. The "equal access" provision is a subsumed
part of Article II of the Constitution, entitled
"Declaration of Principles and State Policies."
The provisions under the Article are generally
considered not self-executing,and there is no
plausible reason for according a different
treatment to the "equal access" provision. Like
the rest of the policies enumerated in Article II,
the provision does not contain any judicially
enforceable constitutional right but merely
specifies a guideline for legislative or executive
action. The disregard of the provision does not
give rise to any cause of action before the
courts.
3. The original wording of the present Section
26, Article II had read, "The State shall broaden
opportunities to public office and prohibit public
dynasties." Commissioner (now Chief Justice)
Hilario Davide, Jr. successfully brought forth an
amendment that changed the word "broaden"
to the phrase "ensure equal access," and the
substitution of the word "office" to "service."
The provision is not intended to compel the
State to enact positive measures that would
accommodate as many people as possible into
public office. The approval of the "Davide
24
amendment" indicates the design of the
framers to cast the provision as simply
enunciatory of a desired policy objective and
not reflective of the imposition of a clear State
burden.
"Equal access" provision requires
implementing legislation to make it
operative
4. It is difficult to interpret the clause as
operative in the absence of legislation since its
effective means and reach are not properly
defined. Broadly written, the myriad of claims
that can be subsumed under this rubric appear
to be entirely open-ended. Words and phrases
such as "equal access," "opportunities," and
"public service" are susceptible to countless
interpretations owing to their inherent
impreciseness. Certainly, it was not the
intention of the framers to inflict on the people
an operative but amorphous foundation from
which innately unenforceable rights may be
sourced.
Nuisance candidate prohibition is a
valid limitation on the privilege to seek
elective office
5. The privilege of equal access to
opportunities to public office may be subjected
to limitations. Some valid limitations specifically
on the privilege to seek elective office are
found in the provisions of the Omnibus Election
Code on "Nuisance Candidates" and COMELEC
Resolution No. 6452 dated December 10, 2002
outlining the instances wherein the COMELEC
may motu proprio refuse to give due course to
or cancel a Certificate of Candidacy.
6. As long as the limitations apply to
everybody equally without discrimination,
however, the equal access clause is not
violated. Equality is not sacrificed as long as
the burdens engendered by the limitations are
meant to be borne by any one who is minded to
file a certificate of candidacy. In the case at bar,
there is no showing that any person is exempt
from the limitations or the burdens which they
create.
7. Petitioner does not challenge the
constitutionality or validity of Section 69 of the
Omnibus Election Code and COMELEC
Resolution No. 6452 . Thus, their presumed
validity stands and has to be accorded due
weight.
Prohibition against nuisance candidates
8. The rationale behind the prohibition against
nuisance candidates and the disqualification of
candidates who have not evinced a bona fide
intention to run for office is easy to divine.
The State has a compelling interest to ensure
that its electoral exercises are rational,
objective, and orderly. Towards this end, the
State takes into account the practical
considerations in conducting elections.
Inevitably, the greater the number of
candidates, the greater the opportunities for
logistical confusion, not to mention the
increased allocation of time and resources in
preparation for the election.
9. The preparation of ballots is but one aspect
that would be affected by allowance of
"nuisance candidates" to run in the elections.
Our election laws provide various entitlements
for candidates for public office, such as
watchers in every polling place, watchers in the
board of canvassers, or even the receipt of
electoral contributions. Moreover, there are
election rules and regulations the formulations
of which are dependent on the number of
candidates in a given election.
10. Owing to the superior interest in ensuring a
credible and orderly election, the State could
exclude nuisance candidates and need not
indulge in, as the song goes, "their trips to the
moon on gossamer wings."
11. The COMELEC is mandated by the
Constitution with the administration of elections
and endowed with considerable latitude in
adopting means and methods that will ensure
the promotion of free, orderly and honest
elections. Moreover, the Constitution
guarantees that only bona fide candidates for
public office shall be free from any form of
harassment and discrimination. The
determination of bona fide candidates is
governed by the statutes and the concept is
satisfactorily defined in the Omnibus Election
Code.
Question of whether a candidate is a
25
nuisance candidate or not is both legal
and factual
12. The assailed resolutions of the COMELEC
do not direct the Court to the evidence which it
considered in determining that petitioner was a
nuisance candidate. This precludes the Court
from reviewing at this instance whether the
COMELEC committed grave abuse of discretion
in disqualifying petitioner.
13. Petitioner has submitted to the Court mere
photocopies of various documents purportedly
evincing his credentials as an eligible candidate
for the presidency. Yet the Supreme Court, not
being a trier of facts, can not properly pass
upon the reproductions as evidence at this
level.
14. The question of whether a candidate is a
nuisance candidate or not is both legal and
factual. The basis of the factual determination
is not before this Court. Thus, the remand of
this case for the reception of further evidence is
in order.
Validity of the form for the certificate of
candidacy
15. As to petitioner's attacks on the validity of
the form for the certificate of candidacy, suffice
it to say that theform strictly complies with
Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a
certificate of candidacy should contain, with the
required information tending to show that the
candidate possesses the minimum
qualifications for the position aspired for as
established by the Constitution and other
election laws.
7. Case Summary
Pelaez vs. Auditor General (1965)
G.R. No. L-23825 | 1965-12-24
Subject: Denial of the presidential authority to
create a new barrio, implies a negation of the
bigger power to create municipalities; Authority
to create municipal corporations is essentially
legislative in nature; Section 68 of the Revised
Administrative Code, which vests on the
President the power to create municipalities, is
an an undue delegation of legislative power;
Public welfare as a sufficient standard for
delegation of legislative authority; President
exercises power of supervision (not control)
over local governments; Issues on proper party
and prematurity of action
Facts:
In 1964, the President of the Philippines,
purporting to act pursuant to Section 68 of the
Revised Administrative Code, issued Executive
Orders Nos. 93 to 121, 124 and 126 to 129,
creating thirty-three (33) municipalities.
Petitioner Emmanuel Pelaez, as Vice-President
of the Philippines and as taxpayer, instituted
the present special civil action for prohibition
against the Auditor General to restrain him from
passing in audit any expenditure of public funds
in implementation of said executive orders
and/or any disbursement by said municipalities.
Petitioner alleges that said executive orders are
null and void because Section 68 of the Revised
Administrative Code has been impliedly
repealed by Republic Act 2370 and that Section
68 constitutes an undue delegation of
legislative power.
Subsequently, the mayors of several
municipalities adversely affected by the
executive orders which took away from the
former the barrios composing the new political
subdivision - intervened in the case. Moreover,
Attorneys Enrique M. Fernando and Emma
Quisumbing-Fernando were allowed to and did
appear as amici curiae.
Held:
Denial of the presidential authority to
create a new barrio, implies a negation of
the bigger power to create municipalities
1. Since January 1, 1960, when Republic Act
No. 2370 became effective, barrios may "not be
created or their boundaries altered nor their
names changed" except (a) by Act of
Congress or (b) of the corresponding provincial
board "upon petition of a majority of the voters
in the areas affected" and the
"recommendation of the council of the
municipality or municipalities in which the
proposed barrio is situated."
26
2. Petitioner argues, accordingly: "If the
President, under this new law, cannot even
create a barrio, can he create a municipality
which is composed of several barrios, since
barrios are units of municipalities?" The Auditor
General reasoned that the authority exists
under the theory that a new municipality can
be created without creating new barrios, such
as, by placing old barrios under the jurisdiction
of the new municipality. However, the court
agreed with the petitioner that the statutory
denial of the presidential authority to create a
new barrio implies a negation of the bigger
power to create municipalities, each of which
consists of several barrios. Founded upon logic
and experience, it cannot be offset except by a
clear manifestation of the intent of Congress to
the contrary, and no such manifestation,
subsequent to the passage of Republic Act No.
2370, has been shown.
Authority to create municipal corporations
is essentially legislative in nature
3. The Auditor General alleges that the power
of the President to create municipalities under
Section 68 of the Revised Administrative Code
does not amount to an undue delegation of
legislative power. The Auditor General cites
Municipality of Cardona vs. Municipality of
Binagonan. However, said case is inapplicable
since it involved, not the creation of a new
municipality, but a mere transfer of territory -
from an already existing municipality (Cardona)
to another municipality (Binagonan), likewise,
existing at the time of and prior to said transfer
- in consequence of the fixing and definition, of
the common boundaries of two municipalities.
4. Whereas the power to fix such common
boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities,
may partake of an administrative nature -
involving, as it does, the adoption of means and
ways to carry into effect the law creating said
municipalities - the authority to create
municipal corporations is essentially legislative
in nature.
It is "strictly a legislative function" or "solely
and exclusively the exercise of legislative
power" As the Supreme Court of Washington
has put it, "municipal corporations are purely
the creatures of statutes."
Section 68 of the Revised Administrative
Code, which vests on the President the
power to create municipalities, is an
undue delegation of legislative power
5. Although Congress may delegate to another
branch of the government the power to fill in
the details in the execution, enforcement or
administration of a law, it is essential, to
forestall a violation of the principle of
separation of powers, that said law:
(a) be complete in itself - it must set forth
therein the policy to be executed, carried out or
implemented by the delegate; and
(b) fix a standard - the limits of which are
sufficiently determinate or determinable - to
which the delegate must conform in the
performance of his functions.
6. Indeed, without a statutory declaration of
policy, the delegate would, in effect, make or
formulate such policy, which is the essence of
every law; and, without the aforementioned
standard, there would be no means to
determine, with reasonable certainty, whether
the delegate has acted within or beyond the
scope of his authority.
7. Section 68 of the Revised Administrative
Code does not meet these well settled
requirements for a valid delegation of the
power to fix the details in the enforcement of a
law. It does not enunciate any policy to be
carried out or implemented by the President.
Neither does it give a standard sufficiently
precise to avoid the evil effects above referred
to.
Public welfare as a sufficient standard
for delegation of legislative authority
8. Under the last clause of the first sentence of
Section 68, the President ". . . may change the
seat of the government within any subdivision
to such place therein as the public welfare may
require."
9. From the language of this clause, the phrase
"as the public welfare may require" qualifies,
not the clauses preceding but only the place to
27
which the seat of the government may be
transferred.
10. Even if we assumed that the phrase "as the
public welfare may require" in said Section 68
qualifies all other clauses thereof, the same will
not save the provision. The Court has upheld
"public welfare" and "public interest" as
sufficient standards for a valid delegation of the
authority to execute the law (see Calalang vs.
William and People vs. Rosenthal) . But, the
doctrine laid down in these cases must be
construed in relation to the specific facts and
issues involved therein, outside of which they
do not constitute precedents and have no
binding effect. Unlike in the cases
of Calalang and Rosenthal, the creation of
municipalities is not an administrative function,
but one which is essentially and eminently
legislative in character. The question whether
or not "public interest" demands the exercise of
such power is not one of fact. It is "purely a
legislative question" or a political question.
11. The term "public welfare" is so broad as to
vest in the President a discretion that is
"virtually unfettered", and, consequently,
tantamount to a delegation of legislative
power. In fact, if the validity of the delegation of
powers made in Section 68 were upheld, there
would no longer be any legal impediment to a
statutory grant of authority to the President to
do anything which, in his opinion, may be
required by public welfare or public
interest. Such grant of authority would be a
virtual abdication of the powers of Congress in
favor of the Executive, and would bring about a
total collapse of the democratic system
established by our Constitution, which it is the
special duty and privilege of this Court to
uphold.
12. It may not be amiss to note that the
executive orders in question were issued after
the legislative bills for the creation of the
municipalities involved in this case had failed to
pass Congress. A better proof of the fact that
the issuance of said executive orders entails
the exercise of purely legislative functions can
hardly be given.
President exercises power of supervision
(not control) over local government
13. Section 10 (1) of Article VII of the 1935
Constitution ordains:
"The President shall have control of all
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."
14. The power of control under this provision
implies the right of the President to interfere in
the exercise of such discretion as may be
vested by law in the officers of the executive
departments, bureaus, or offices of the national
government, as well as to act in lieu of such
officers. This power is denied by the
Constitution to the Executive, insofar as local
governments are concerned. With respect to
the latter, the fundamental law permits him to
wieldno more authority than that of checking
whether said local governments or the officers
thereof perform their duties as provided by
statutory enactments. Hence, the President
cannot interfere with local governments, so
long as the same or its officers act within the
scope of their authority. He may not enact an
ordinance which the municipal council has
failed or refused to pass, even if it had thereby
violated a duty imposed thereto by law,
although he may see to it that the
corresponding provincial officials take
appropriate disciplinary action therefor. Neither
may he veto, set aside or annul an ordinance
passed by said council within the scope of its
jurisdiction, no matter how patently unwise it
may be. He may not even 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.
15. If the President could create a municipality,
he could, in effect, remove any of its officials,
by creating a new municipality and including
therein the barrio in which the official
concerned resides, for his office would thereby
become vacant. Thus, by merely brandishing
the power to create a new municipality (if he
had it), without actually creating it, he could
compel local officials to submit to his dictation,
thereby, in effect, exercising over them the
power of control denied to him by the
Constitution.
28

16. Also, the power of control of the President
over executive departments, bureaus or offices
implies no more than the authority to assume
directly the functions thereof or to interfere in
the exercise of discretion by its officials.
Manifestly, such control does not include the
authority either to abolish an executive
department or bureaus, or to create a new one.
As a consequence, the alleged power of the
President to create municipal corporations
would necessarily connote the exercise by him
of an authority even greater than that of control
which he has over the executive departments,
bureaus or offices. In other words, Section 68 of
the Revised Administrative Code does not
merely fail to comply with the constitutional
mandate above quoted. Instead of giving the
President less power over local governments
than that vested in him over the executive
departments, bureaus or offices, it reverses the
process and does the exact opposite, by
conferring upon him more power over municipal
corporations than that which he has over said
executive departments, bureaus or offices.
17. Even if it did not entail an undue
delegation of legislative powers, as it certainly
does, said Section 68 of the Revised
Administrative Code, approved on March 10,
1917, must be deemed repealed by the
subsequent adoption of the Constitution, in
1935, which is utterly incompatible and
inconsistent with said statutory enactment.
Issues on proper party and prematurity of
action
18. It has been alleged that "not all the proper
parties" - referring to the officers of the newly
created municipalities - "have been impleaded
in this case" Suffice it to say that the records do
not show, and the parties do not claim, that the
officers of any of said municipalities have been
appointed or elected and assumed office. At
any rate, the Solicitor-General, who has
appeared on behalf of respondent Auditor
General, is the officer authorized by law "to act
and represent the Government of the
Philippines, its offices and agents, in any official
investigation, proceeding or matter requiring
the services of a lawyer" and, in connection
with the creation of the aforementioned
municipalities, which involves a political, not
proprietary, function, said local officials, if any,
are mere agents or representatives of the
national government. Their interest in the case
at bar has, accordingly, been, in effect, duly
represented.
19. Respondent alleges that "the present
petition is premature" since he has not as yet
acted on any of the executive order in question
and has not intimated how he would act in
connection therewith. It is however, a matter of
common, public knowledge, subject to judicial
cognizance, that the President has, for many
years, issued executive orders creating
municipal corporations and that the same have
been organized and in actual operation, thus
indicating that the expenditures incidental
thereto have been sanctioned, approved or
passed in audit by the General Auditing Office
and its officials. There is no reason to believe,
therefore, that respondent would adopt a
different policy as regards the new
municipalities involved in this case, in the
absence of an allegation to such effect, and
none has been made by him.
8. Case Summary
Ichong vs. Hernandez (1957)
G.R. No. L-7995 | 1957-05-31
Subject: Police power and its limitations; Equal
protection clause; Due process clause;
Legislative discretion not subject to judicial
review; Alien control and dominance in retail
viewed as a threat to national interest; Republic
Act No. 1180 is a valid exercise of police power,
as it was enacted in the interest of national
economic survival and security; Equal
protection clause not violated (Difference in
alien aims and purposes sufficient basis for
distinction); Citizenship as basis for
classification; Due process as a limitation on
the exercise of the police power (Republic Act
No. 1180 is reasonable and not arbitrary); No
defect in the title of the law (The general term
regulate encompasses prohibition); No
violation of international treaties and
obligations
Facts:
The petition was brought to challenge the
constitutionality of Republic Act No. 1180
entitled "An Act to Regulate the Retail
29
Business." In effect it nationalizes the retail
trade business. The main provisions of the Act
are:
(1) a prohibition against persons, not citizens of
the Philippines, and against associations,
partnerships, or corporations the capital of
which are not wholly owned by citizens of the
Philippines, from engaging directly or indirectly
in the retail trade;
(2) an exception from the above prohibition in
favor of aliens actually engaged in said
business on May 15, 1954, who are allowed to
continue to engaged therein, unless their
licenses are forfeited in accordance with the
law, until their death or voluntary retirement in
case of natural persons, and for ten years after
the approval of the Act or until the expiration of
term in case of juridical persons;
(3) an exception therefrom in favor of citizens
and juridical entities of the United States;
(4) a provision for the forfeiture of licenses (to
engage in the retail business) for violation of
the laws on nationalization, control weights and
measures and labor and other laws relating to
trade, commerce and industry;
(5) a prohibition against the establishment or
opening by aliens actually engaged in the retail
business of additional stores or branches of
retail business,
(6) a provision requiring aliens actually
engaged in the retail business to present for
registration with the proper authorities a
verified statement concerning their businesses,
giving, among other matters, the nature of the
business, their assets and liabilities and their
offices and principal offices of judicial entities;
and
(7) a provision allowing the heirs of aliens now
engaged in the retail business who die, to
continue such business for a period of six
months for purposes of liquidation.
Petitioner, for his own behalf and that of other
alien residents corporations and partnerships
adversely affected by the RA 1180, attacks the
constitutionality of the Act, contending that:
(1) it denies to alien residents the equal
protection of the laws and deprives them of
their liberty and property without due process
of law ;
(2) the subject of the Act is not expressed or
comprehended in the title thereof;
(3) the Act violates international and treaty
obligations of the Republic of the Philippines;
(4) the provisions of the Act against the
transmission by aliens of their retail business
thru hereditary succession, and those requiring
100% Filipino capitalization for a corporation or
entity to entitle it to engage in the retail
business, violate the spirit of Sections 1 and 5,
Article XIII and Section 8 of Article XIV of the
Constitution.
Held:
Police power and its limitations
1. Republic Act No. 1180 was approved in the
exercise of the police power. It has been said
the police power is so far-reaching in scope,
that it has become almost impossible to limit its
sweep. As it derives its existence from the very
existence of the State itself, it does not need to
be expressed or defined in its scope. It is said
to be co-extensive with self-protection and
survival, and as such it is the most positive and
active of all governmental processes, the most
essential, insistent and illimitable. As we cannot
foresee the needs and demands of public
interest and welfare in this constantly changing
and progressive world, so we cannot delimit
beforehand the extent or scope of police power
by which and through which the State seeks to
attain or achieve interest or welfare. So it is
that Constitutions do not define the scope or
extent of the police power of the State; what
they do is to set forth the limitations
thereof. The most important of these are
the due process clause and the equal
protection clause.
2. The basic limitations of due process and
equal protection are found in Article III, Section
of the Constitution:
SECTION 1. No person shall be deprived of life,
liberty or property without due process of law,
nor any person be denied the equal protection
of the laws.
30

3. The conflict between police power and the
guarantees of due process and equal protection
of the laws is more apparent than real. Properly
related, the power and the guarantees are
supposed to coexist. So the State can deprive
persons of life, liberty and property, provided
there is due process of law; and persons may
be classified into classes and groups, provided
everyone is given the equal protection of the
law. The test or standard, as always, is reason.
The police power legislation must be firmly
grounded on public interest and welfare, and
areasonable relation must exist between
purposes and means. And if distinction and
classification has been made, there must be
a reasonable basis for said distinction.
(a) Equal protection clause
4. The equal protection of the law clause is
against undue favor and individual or class
privilege, as well as hostile discrimination or
the oppression of inequality. It is not intended
to prohibit legislation, which is limited either in
the object to which it is directed or by territory
within which is to operate. It does not demand
absolute equality among residents; it merely
requires that all persons shall be treated
alike, under like circumstances and
conditionsboth as to privileges conferred and
liabilities enforced. The equal protection clause
is not infringed by legislation which applies only
to those persons falling within a specified class,
if it applies alike to all persons within such
class, and reasonable grounds exists for making
a distinction between those who fall within such
class and those who do not.
(b) Due process clause
5. The due process clause has to do with the
reasonableness of legislation enacted in
pursuance of the police power. Is there public
interest, a public purpose; is public welfare
involved? Is the Act reasonably necessary for
the accomplishment of the legislature's
purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or
reason in connection with the matter involved;
or has there not been a capricious use of the
legislative power? Can the aims conceived be
achieved by the means used, or is it not merely
an unjustified interference with private interest?
These are the questions that we ask when the
due process test is applied.
Legislative discretion not subject to
judicial review
6. The legislature, which is the constitutional
repository of police power and exercises the
prerogative of determining the policy of the
State, is primarily the judge of necessity,
adequacy or reasonableness and wisdom, of
any law promulgated in the exercise of the
police power, or of the measures adopted to
implement the public policy or to achieve public
interest. On the other hand, courts, although
zealous guardians of individual liberty and
right, have nevertheless evinced a reluctance
to interfere with the exercise of the legislative
prerogative. They have done so early where
there has been a clear, patent or palpable
arbitrary and unreasonable abuse of the
legislative prerogative. Moreover, courts are not
supposed to override legitimate policy,
and courts never inquire into the wisdom of the
law.
Alien control and dominance in retail
viewed as a threat to national interest
7. There is a general feeling on the part of the
public, which appears to be true to fact, about
the controlling and dominant position that the
alien retailer holds in the nation's economy.
Food and other essentials, clothing, almost all
articles of daily life reach the residents mostly
through him. Between the constitutional
convention year (1935), when the fear of alien
domination and control of the retail trade
already filled the minds of our leaders with
fears and misgivings, and the year of the
enactment of the nationalization of the retail
trade act (1954), official statistics unmistakably
point out to the ever-increasing dominance and
control by the alien of the retail trade. While
Filipinos have the edge in the number of
retailers, aliens more than make up for the
numerical gap through their assests and gross
sales which average between six and seven
times those of the very many Filipino retailers.
Numbers in retailers, here, do not imply
superiority; the alien invests more capital, buys
and sells six to seven times more, and gains
much more.
31

8. There is a prevailing feeling that such
predominance may truly endanger the national
interest. With ample capital, unity of purpose
and action and thorough organization, alien
retailers and merchants can act in such
complete unison and concert on such vital
matters as the fixing of prices, the
determination of the amount of goods or
articles to be made available in the market, and
even the choice of the goods or articles they
would or would not patronize or distribute, that
fears of dislocation of the national economy
and of the complete subservience of national
economy and of the consuming public are not
entirely unfounded. Nationals, producers and
consumers alike can be placed completely at
their mercy.
9. It is a fact within judicial notice, which courts
of justice may not properly overlook or ignore in
the interests of truth and justice, that there
exists a general feeling on the part of the public
that alien participation in the retail trade has
been attended by a pernicious and intolerable
practices, the mention of a few of which would
suffice for our purposes; that at some time or
other they have cornered the market of
essential commodities, like corn and
rice, creating artificial scarcities to justify and
enhance profits to unreasonable proportions;
that they have hoarded essential foods to the
inconvenience and prejudice of the consuming
public, so much so that the Government has
had to establish the National Rice and Corn
Corporation to save the public from their
continuous hoarding practices and tendencies;
that they have violated price control laws,
especially on foods and essential commodities,
such that the legislature had to enact a law
(Sec. 9, Republic Act No. 1168), authorizing
their immediate and automatic deportation for
price control convictions; that they have secret
combinations among themselves to control
prices, cheating the operation of the law of
supply and demand; that they have connived to
boycott honest merchants and traders who
would not cater or yield to their demands, in
unlawful restraint of freedom of trade and
enterprise. They are believed by the public to
have evaded tax laws, smuggled goods and
money into and out of the land, violated import
and export prohibitions, control laws and the
like, in derision and contempt of lawful
authority. It is also believed that they have
engaged in corrupting public officials with
fabulous bribes, indirectly causing the
prevalence of graft and corruption in the
Government. As a matter of fact appeals to
unscrupulous aliens have been made both by
the Government and by their own lawful
diplomatic representatives, action which
impliedly admits a prevailing feeling about the
existence of many of the above practices.
10. The present dominance of the alien
retailer, especially in the big centers of
population, also becomes a potential source of
danger on occasions of war or other calamity.
We do not have here in this country isolated
groups of harmless aliens retailing goods
among nationals; what we have are well
organized and powerful groups that dominate
the distribution of goods and commodities in
the communities and big centers of population.
Theyowe no allegiance or loyalty to the State,
and the State cannot rely upon them in times of
crisis or emergency. While the national holds
his life, his person and his property subject to
the needs of his country, the alien may even
become the potential enemy of the State.
Republic Act No. 1180 is a valid exercise
of police power, as it was enacted in the
interest of national economic survival and
security
11. Republic Act No. 1180 is not the product of
racial hostility, prejudice or discrimination, but
the expression of the legitimate desire and
determination of the people, thru their
authorized representatives, to free the nation
from the economic situation that has
unfortunately been saddled upon it rightly or
wrongly, to its disadvantage.The law is clearly
in the interest of the public, nay of the national
security itself, and indisputably falls within the
scope of police power, thru which and by which
the State insures its existence and security and
the supreme welfare of its citizens.
Equal protection clause not violated
(Difference in alien aims and purposes
sufficient basis for distinction)
12. The mere fact of alienage is the root and
cause of the distinction between the alien and
the national as a trader. The alien resident owes
32
allegiance to the country of his birth or his
adopted country; his stay here is for personal
convenience; he is attracted by the lure of gain
and profit. His aim or purpose of stay, we
admit, is neither illegitimate nor immoral, but
he is naturally lacking in that spirit of loyalty
and enthusiasm for this country where he
temporarily stays and makes his living, or of
that spirit of regard, sympathy and
consideration for his Filipino customers as
would prevent him from taking advantage of
their weakness and exploiting them.
13. The practices resorted to by aliens in the
control of distribution, their secret
manipulations of stocks of commodities and
prices, their utter disregard of the welfare of
their customers and of the ultimate happiness
of the people of the nation of which they are
mere guests, which practices, manipulations
and disregard do not attend the exercise of the
trade by the nationals, show the existence of
real and actual, positive and fundamental
differences between an alien and a national
which fully justify the legislative classification
adopted in the retail trade measure.
These differences are certainly a valid reason
for the State to prefer the national over the
alien in the retail trade.
14. Another objection to the alien retailer in
this country is that he never really makes a
genuine contribution to national income and
wealth. He undoubtedly contributes to general
distribution, but the gains and profits he makes
are not invested in industries that would help
the country's economy and increase national
wealth. The alien's interest in this country being
merely transient and temporary, it would
indeed be ill-advised to continue entrusting the
very important function of retail distribution to
his hands.
15. Some may disagree with the wisdom of the
legislature's classification. To this we answer,
that this is the prerogative of the law-making
power. Since the Court finds that
the classification is actual, real and reasonable,
and all persons of one class are treated alike,
and as it cannot be said that the classification
is patently unreasonable and unfounded, it is in
duty bound to declare that the legislature acted
within its legitimate prerogative and it can not
declare that the act transcends the limit of
equal protection established by the
Constitution.
Citizenship as basis for classification
16. The question as to whether or not
citizenship is a legal and valid ground for
classification has already been affirmatively
decided in this jurisdiction as well as in various
courts in the United States. (see Smith Bell &
Co. vs. Natividad)
17. Aliens are under no special constitutional
protection which forbids a classification
otherwise justified simply because the
limitation of the class falls along the lines of
nationality. That would be requiring a higher
degree of protection for aliens as a class than
for similar classes than for similar classes of
American citizens. Broadly speaking,
the difference in status between citizens and
aliens constitutes a basis for reasonable
classification in the exercise of police power.
18. It is true that some decisions in the United
States hold that the distinction between aliens
and citizens is not a valid ground for
classification. But in those decisions, the laws
declared invalid were found to be either
arbitrary, unreasonable or capricious, or were
the result or product of racial antagonism and
hostility, and there was no question of public
interest involved or pursued. The case at bar is
radically different. As we already have said,
aliens do not naturally possess the sympathetic
consideration and regard for the customers
with whom they come in daily contact, nor the
patriotic desire to help bolster the nation's
economy, except in so far as it enhances their
profit, nor the loyalty and allegiance which the
national owes to the land.
Due process as a limitation on the
exercise of the police power (Republic Act
No. 1180 is reasonable and not arbitrary)
19. The guaranty of due process demands only
that the law shall not be unreasonable,
arbitrary or capricious, and that the means
selected shall have a real and substantial
relation to the subject sought to be attained.
20. So far as the requirement of due process is
concerned and in the absence of other
33
constitutional restriction a state is free to adopt
whatever economic policy may reasonably be
deemed to promote public welfare, and to
enforce that policy by legislation adapted to its
purpose. The courts are without authority either
to declare such policy, or, when it is declared
by the legislature, to override it. If the laws
passed are seen to have a reasonable relation
to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements
of due process are satisfied, and judicial
determination to that effect renders a
court functus officio. (see Nebbia vs. New York)
21. Is the exclusion in the future of aliens from
the retail trade unreasonable, arbitrary,
capricious, taking into account the illegitimate
and pernicious form and manner in which the
aliens have heretofore engaged therein? The
answer is clear. The law in question is deemed
absolutely necessary to bring about the desired
legislative objective, i.e., to free national
economy from alien control and dominance. It
is not necessarily unreasonable because it
affects private rights and privileges. The test of
reasonableness of a law is the appropriateness
or adequacy under all circumstances of the
means adopted to carry out its purpose into
effect. Judged by this test, the disputed
legislation, which is not merely reasonable but
actually necessary, must be considered not to
have infringed the constitutional limitation of
reasonableness.
22. A cursory study of the provisions of the law
immediately reveals how tolerant, how
reasonable, the Legislature has been. The law is
made prospective and recognizes the right and
privilege of those already engaged in the
occupation to continue therein during the rest
of their lives; and similar recognition of the
right to continue is accorded associations of
aliens. The right or privilege is denied to those
only upon conviction of certain offenses
23. Furthermore, the test of the validity of a
law attacked as a violation of due process, is
not its reasonableness, but its
unreasonableness, and we find the provisions
are not unreasonable. These principles also
answer various other arguments raised against
the law, some of which are: that the law does
not promote general welfare; that thousands of
aliens would be thrown out of employment; that
prices will increase because of the elimination
of competition; that there is no need for the
legislation; that adequate replacement is
problematical; that there may be general
breakdown; that there would be repercussions
from foreigners; etc. Many of these arguments
are directed against the supposed wisdom of
the law which lies solely within the legislative
prerogative; they do not import invalidity.
No defect in the title of the law (The
general term regulate encompasses
prohibition)
24. It is claimed that the title of Republic Act
No. 1180 (An Act to Regulate the Retail
Business) is misleading or deceptive, as it
conceals the real purpose of the bill which is to
nationalize the retail business and prohibit
aliens from engaging therein. The constitutional
provision which is claimed to be violated in
Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall
embrace more than one subject which shall be
expressed in the title of the bill.
25. What the above provision prohibits is
duplicity, that is, if its title completely fails to
appraise the legislators or the public of the
nature, scope and consequences of the law or
its operation. A cursory consideration of the
title and the provisions of the bill fails to show
the presence of duplicity. It is true that the term
"regulate" does not and may not readily and at
first glance convey the idea of "nationalization"
and "prohibition", which terms express the two
main purposes and objectives of the law.
But "regulate" is a broader term than either
prohibition or nationalization. Both of these
have always been included within the term
regulation.
26. The word "regulate" is of broad import,
and necessarily implies some degree of
restraint and prohibition of acts usually done in
connection with the thing to be regulated.
While word regulate does not ordinarily convey
meaning of prohibit, there is no absolute reason
why it should not have such meaning when
used in delegating police power in connection
with a thing the best or only efficacious
regulation of which involves suppression. (see
State vs. Morton)
34

27. The general rule is for the use of general
terms in the title of a bill; it has also been said
that the title need not be an index to the entire
contents of the law . The above rule was
followed since the title of the Act in question
adopted the more general term "regulate"
instead of "nationalize" or "prohibit".
Furthermore, the law also contains other rules
for the regulation of the retail trade which may
not be included in the terms "nationalization" or
"prohibition"; so were the title changed from
"regulate" to "nationalize" or "prohibit", there
would have been many provisions not falling
within the scope of the title which would have
made the Act invalid. The use of the term
"regulate", therefore, is in accord with the
principle governing the drafting of statutes,
under which a simple or general term should be
adopted in the title, which would include all
other provisions found in the body of the Act.
No violation of international treaties and
obligations
28. Another argument against the validity of
the law is the supposed violation thereby of the
Charter of the United Nations and of the
Declaration of the Human Rights adopted by
the United Nations General Assembly. The
Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of
their subjects, and the Declaration of Human
Rights contains nothing more than a mere
recommendation or a common standard of
achievement for all peoples and all nations.
That such is the import of the United Nations
Charter and of the Declaration of Human Rights
can be inferred the fact that members of the
United Nations Organizations, such as Norway
and Denmark, prohibit foreigners from
engaging in retail trade, and in most nations of
the world laws against foreigners engaged in
domestic trade are adopted.
29. The Treaty of Amity between the Republic
of the Philippines and the Republic of China of
April 18, 1947 is also claimed to be violated by
the law in question. All that the treaty
guarantees is equality of treatment to the
Chinese nationals "upon the same terms as the
nationals of any other country." But the
nationals of China are not discriminated against
because nationals of all other countries, except
those of the United States, who are granted
special rights by the Constitution, are all
prohibited from engaging in the retail trade.
But even supposing that the law infringes upon
the said treaty, the treaty is always subject to
qualification or amendment by a subsequent
law and the same may never curtail or restrict
the scope of the police power of the State.
9. Case Summary
Naval vs. Comelec (2014)
G.R. No. 207851 | 2014-07-08
Subject: Jurisprudence on the three-term limit
rule; The role of elections in our Democratic
and Republican state, and the restraints
imposed upon those who hold public office; The
Constitution mandates the strict
implementation of the three-term limit rule;
Aldivino ruling: The three-term limit rule is
inflexible; Reapportionment and its basis; R.A.
No. 9716 created a new Second District, but it
merely renamed the other four; Application of
three-term limit rule upon local elective officials
in renamed and/or reapportioned districts; The
presumed competence of the COMELEC to
resolve matters falling within its jurisdiction is
upheld
Facts:
From 2004 to 2007 (1st term) and 2007 to 2010
(2nd term), Angel G. Naval had been elected
and had served as a member of the
Sanggunian, Second District, Province of
Camarines Sur.
On October 12, 2009, the President approved
Republic Act No. 9716, which reapportioned the
legislative districts in Camarines Sur. In
particular, the Second District was
reapportioned such that 8 out of its 10 town
constituencies are carved out and placed under
the Third District. The Second District is left
with the two remaining towns, Gainza and
Milaor, merged with five towns from the old
First District.
In the 2010 elections (3rd term), Naval once
again won but this time as a member of the
Sanggunian, Third District. He served until
2013.
In the 2013 elections, Naval ran anew and was
35
re-elected as Member of the Sanggunian, Third
District.
On October 29, 2012, Nelson B. Julia invoked
Section 7810 of the Omnibus Election Code
(OEC) and filed before the COMELEC a Verified
Petition to Deny Due Course or to Cancel the
Certificate of Candidacy of Naval. Julia posited
that the three-term limit rules application is
more with reference to the same local elective
post, and not necessarily in connection with an
identical territorial jurisdiction. Allowing Naval
to run as a Sanggunian member for the fourth
time, irrespective of the District, is violative of
the three-term limit rule enshrined in the
Constitution and the LGC, which must be
strictly construed.
The COMELEC Second Division cancelled
Navals COC on the ground that Naval had
committed a false material misrepresentation
when he declared that he was eligible to run
when in fact he is disqualified under the three
term limit rule. The said body rationed that the
new Third District where Naval was elected and
has served (his 3rd term) is composed of the
same municipalities comprising the previous
Second District, absent the towns Gainza and
Milaor. Hence, the territorial jurisdiction Naval
seeks to serve for the term 2013-2016 is the
same as the territorial jurisdiction he previously
served. The electorate who voted for him in
2004 (1st term) , 2007 (2nd term)and 2010 (3rd
term) is the same electorate who shall vote for
him come May 13, 2013 Elections.
The COMELEC en banc denied Navals Motion
for Reconsideration to the above and affirmed
the application of the three-term limit rule
against Naval. Hence, this petition.
Held:
Jurisprudence on the three-term limit rule
1. In Latasa vs. COMELEC (2003), the case
involved the question of whether or not a
municipal mayor, having been elected and had
already served for three (3) consecutive terms,
can run as city mayor in light of the conversion
of the municipality to a city. In applying the
three-term limit rule, the Court pointed out 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 Court
took into account the following circumstances:
(1) That the territorial jurisdiction of [the] city
was the same as that of the municipality; (2)
That the inhabitants were the same group of
voters who elected the municipal mayor for
three (3) consecutive terms; and (3) That the
inhabitants were the same group of voters over
whom he held power and authority as their
chief executive for nine years.
2. In Lonzanida vs. COMELEC (1999), a
candidate ran for the mayoralty post and won
in three consecutive elections. While serving his
third term, his opponent filed an election
protest. Months before the expiration of the
mayors third term, he was ousted from office.
He ran again for the same post in the
immediately succeeding election. The Court
ruled that the mayor could not be considered as
having served a full third term. An interruption
for any length of time, if due to an involuntary
cause, is enough to break the elected officials
continuity of service.
3. In Borja, Jr. vs. COMELEC (1998) , the
mayor of Pateros died and was succeeded in
office by the vice mayor. In the two
immediately succeeding elections, the latter
vied for and won the mayoralty post. When he
ran for the same position for the third time, his
disqualification was sought for alleged violation
of the three-term limit rule. The Court ruled that
when he assumed the position of mayor by
virtue of succession, his service should not be
treated as one full term. For the disqualification
to apply, the candidate should have been
thrice elected for and had served the same
post consecutively.
4. In Aldovino vs. COMELEC (2009),
preventive suspension was imposed upon an
elected municipal councilor. The Court ruled
that the said preventive suspension did not
interrupt the elective officials term. Although
he was barred from exercising the functions of
the position during the period of suspension, his
continued stay and entitlement to the office
remain unaffected.
5. In Bandillo vs. Hernandez, a case decided
by the COMELEC, Gainza and Milaor were
added to five of the ten towns, which used to
36
comprise Camarines Surs old First District, to
form the new Second District. The COMELEC
declined to apply the three-term limit rule
against the elected Provincial Board member on
the ground that the addition of Gainza and
Milaor distinctively created a new district, with
an altered territory and constituency.
The role of elections in our Democratic
and Republican state, and the restraints
imposed upon those who hold public office
6. The Philippines is a democratic and
republican State. Sovereignty resides in the
people and all government authority emanates
from them.
7. A republic is a representative government, a
government run by and for the people. It is not
a pure democracy where the people govern
themselves directly. The essence of
republicanism is representation and renovation,
the selection by the citizenry of a corps of
public functionaries who derive their mandate
from the people and act on their behalf, serving
for a limited period only, after which they are
replaced or retained, at the option of their
principal. Obviously, a republican government
is a responsible government whose officials
hold and discharge their position as a public
trust and shall, according to the Constitution,
at all times be accountable to the people they
are sworn to serve. The purpose of a republican
government it is almost needless to state, is
the promotion of the common welfare
according to the will of the people themselves.
8. The electoral process is one of the linchpins
of a democratic and republican framework
because it is through the act of voting that
government by consent is secured. Voting has
an important instrumental value in preserving
the viability of constitutional democracy. It has
traditionally been taken as a prime indicator of
democratic participation
9. Hence, while it is settled that in elections,
the first consideration of every democratic
polity is to give effect to the expressed will of
the majority, there are limitations to being
elected to a public office. Our Constitution and
statutes are explicit anent the existence of term
limits, the nature of public office, and the
guarantee from the State that citizens shall
have equal access to public service. Section 8,
Article X of our Constitution, on term limits, is
significantly reiterated by Section 43(b) of the
Local Government Code. Moreover, the Court
has time and again declared that a public office
is a public trust and not a vested property right.
The Constitution mandates the strict
implementation of the three-term limit
rule
10. In the constitutional deliberations, the
drafters of our Constitution are in agreement
about the possible attendant evils if there
would be no limit to re-election.
Notwithstanding their conflicting preferences on
whether the term limit would disqualify the
elected official perpetually or temporarily, they
decided that only three consecutive elections to
the same position would be allowed. Thereafter,
the public official can once again vie for the
same post provided there be a gap of at least
one term from his or her last election. The rule
answers the need to prevent the consolidation
of political power in the hands of the few, while
at the same time giving to the people the
freedom to call back to public service those
who are worthy to be called statesmen.
11. The Court in construing a Constitution
should bear in mind the object sought to be
accomplished by its adoption, and the evils, if
any, sought to be prevented or remedied. A
doubtful provision will be examined in the light
of the history of the times, and the condition
and circumstances under which the
Constitution was framed. The object is to
ascertain the reason which induced the framers
of the Constitution to enact the particular
provision and the purpose sought to be
accomplished thereby, in order to construe the
whole as to make the words consonant to that
reason and calculated to effect that purpose.
12. The Court notes that in the process of
drafting the Constitution, the framers thereof
had not discussed with specifity the subject of
the three-term limit rules application on
reapportioned districts.
Aldivino ruling: The three-term limit rule
is inflexible
13. The limitation is expressed in the
37
negativeno such official shall serve for more
than three consecutive terms. This formulation
no more than three consecutive termsis a
clear command suggesting the existence of an
inflexible rule. 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. The cases teach us to
strictly interpret the term limitation rule in favor
of limitation rather than its exception.
Reapportionment and its basis
14. Reapportionment is the realignment or
change in legislative districts brought about by
changes in population and mandated by the
constitutional requirement of equality of
representation. The aim of legislative
apportionment is to equalize population and
voting power among districts. The basis for
districting shall be the number of the
inhabitants of a city or a province and not the
number of registered voters therein.
R.A. No. 9716 created a new Second
District, but it merely renamed the other
four
15. As a result of the reapportionment made by
R.A. No. 9716, the old Second District of
Camarines Sur, minus only the two towns of
Gainza and Milaor, is renamed as the Third
District.
16. After the reapportionment of the districts in
Camarines Sur, the current Third District, which
brought Naval to office in 2010 and 2013, has a
population of 35,856 less than that of the old
Second District, which elected him in 2004 and
2007. However, the wordings of R.A. No. 9716
indicate the intent of the lawmakers to create a
single new Second District from the merger of
the towns from the old First District with Gainza
and Milaor. As to the current Third District,
Section 3(c) of R.A. No. 9716 used the word
rename. Although the qualifier without a
change in its composition was not found in
Section 3(c), unlike in Sections 3(d) and (e),
still, what is pervasive is the clear intent to
create a sole new district in that of the Second,
while merely renaming the rest.
17. The verb create means to make or
produce something new. On the other hand,
the verb rename means to give a new name to
someone or something. A complete reading of
R.A. No. 9716 yields no logical conclusion other
than that the lawmakers intended the old
Second District to be merely renamed as the
current Third District.
18. It likewise bears noting that the actual
difference in the population of the old Second
District from that of the current Third District
amounts to less than 10% of the population of
the latter. This numerical fact renders the new
Third District as essentially, although not
literally, the same as the old Second District.
Hence, while Naval is correct in his argument
that Sanggunian members are elected by
district, it does not alter the fact that the
district which elected him for the third and
fourth time is the same one which brought him
to office in 2004 and 2007.
Application of three-term limit rule upon
local elective officials in renamed and/or
reapportioned districts
19. Navals ineligibility to run, by reason of
violation of the three-term limit rule, does not
undermine the right to equal representation of
any of the districts in Camarines Sur. With or
without him, the renamed Third District, which
he labels as a new set of constituents, would
still be represented, albeit by another eligible
person.
20. Sustaining Navals arguments would
practically allow him to hold the same office for
15 years. These are the circumstances the
Constitution explicitly intends to avert.
The presumed competence of the
COMELEC to resolve matters falling within
its jurisdiction is upheld
21. A petition for certiorari against actions of
the COMELEC is confined only to instances of
grave abuse of discretion amounting to patent
and substantial denial of due process, because
the COMELEC is presumed to be most
competent in matters falling within its domain.
38

22. In a special civil action for certiorari, the
burden rests on the petitioner to prove not
merely reversible error, but grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of the public respondent
issuing the impugned order, decision or
resolution. Grave abuse of discretion arises
when a court or tribunal violates the
Constitution, the law or existing jurisprudence.
In the case at bar, the Court finds the
COMELECs disquisitions to be amply supported
by the Constitution, law and jurisprudence.
10. Case Summary
Araullo vs Aquino (2014)
G.R. No. 209287 | 2014-07-01
Subject:
Judicial Review; Philippine Budget System;
Section 25(5) and Section 29(1) of Article VI of
the 1987 Constitution; Impoundment; Equal
Protection; Doctrine of Operative Fact
Facts:
Consolidated petitions assail the
constitutionality of the Disbursement
Acceleration Program (DAP), National Budget
Circular (NBC) No. 541, and related issuances of
the Department of Budget and Management
(DBM) implementing the DAP.
The controversy stemmed from a privilege
speech delivered by Senator Jinggoy Estrada to
reveal that some Senators, including himself,
had been allotted an additional P50 Million each
as incentive for voting in favor of the
impeachment of Chief Justice Renato Corona.
In response, DBM Secretary Florencio Abad
issued a public statement explaining that the
funds released to the Senators had been part of
the DAP, a program designed by the DBM to
ramp up spending to accelerate economic
expansion. He clarified that the funds had been
released to the Senators based on their letters
of request for funding and that the DAP
releases had been sourced from savings
generated by the Government, and from
unprogrammed funds.
Petitioners allege that the DAP, being actually
an appropriation that sets aside public funds for
public use, should require an enabling law for
its validity. However, Congress never enacted a
law to establish the DAP nor to authorize
release of public funds to implement the DAP.
Thus, it is contended that DAP contravenes
Section 29(1) of Article VI of the 1987
Constitution which states that [n]o money
shall be paid out of the Treasury except in
pursuance of an appropriation made by law
The OSG posits, however, that no law was
necessary for the adoption and implementation
of the DAP because of its being neither a fund
nor an appropriation, but a program or an
administrative system of prioritizing spending;
and that the adoption of the DAP was by virtue
of the authority of the President as the Chief
Executive to ensure that laws were faithfully
executed
The DBM also cited as legal bases for the DAPs
use of savings (a) Section 25(5), Article VI of
the 1987 Constitution, which granted to the
President the authority to augment an item for
his office in the general appropriations law (b)
various sections of EO 292 (Administrative Code
of 1987); and (c) the General Appropriations
Acts of 2011, 2012 and 2013, particularly their
provisions on the use of savings.
Held:
I. Procedural Issues
Judicial Review
1. Judicial power as defined under [Section1, Art
8] of the 1987 Constitution includes the duty of
the courts of justice not only to settle actual
controversies involving rights which are legally
demandable and enforceable but also to
determine whether or not there has been a
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch
or instrumentality of the Government. It has
thereby expanded the concept of judicial power.
2. The requisites for the exercise of the power
of judicial review are the following, namely: (1)
there must be an actual case or justiciable
controversy before the Court; (2) the question
before the Court must be ripe for adjudication;
(3) the person challenging the act must be
39
a proper party; and (4) the issue of
constitutionality must be raised at the earliest
opportunity and must be the very litis mota of
the case
(a) The incompatibility of the perspectives of
the parties on the constitutionality of the DAP
and its relevant issuances satisfy the
requirement for a conflict between legal rights.
Hence, an actual and justiciable controversy
exists.
(b) The issues being raised meet the requisite
ripeness considering that the challenged
executive acts were already being implemented
by the DBM.
(c) as citizens and taxpayers, petitioners have
sufficient interest in the outcome of the
controversy as to confer locus standi on each of
them. Moreover, the issues involve matters of
transcendental importance.
Mootness
3. A moot and academic case is one that
ceases to present a justiciable controversy by
virtue of supervening events, so that a
declaration thereon would be of no practical
use or value.
4. The Court cannot agree that the termination
of the DAP as a program was a supervening
event that effectively mooted these
consolidated cases. Verily, the Court had in the
past exercised its power of judicial review
despite the cases being rendered moot and
academic by supervening events, like: (1) when
there was a grave violation of the Constitution;
(2) when the case involved a situation of
exceptional character and was of paramount
public interest; (3) when the constitutional
issue raised required the formulation of
controlling principles to guide the Bench, the
Bar and the public; and (4) when the case was
capable of repetition yet evading review.
Locus Standi
5. Legal standing, as a requisite for the exercise
of judicial review, refers to a right of
appearance in a court of justice on a given
question.
6. The Court has adopted the direct injury
test for determining whether a petitioner in
a public action has locus standi, i.e., the person
who would assail the validity of a statute must
have a personal and substantial interest in the
case such that he has sustained, or will sustain
direct injury as a result.
7. The requirement of locus standi, being a
mere procedural technicality, can be waived by
the Court in the exercise of its discretion.
II. Substantive Issues
Budget System
8. Under Republic Act No. 992 (Revised Budget
Act) the term 'budget' is described as the
services and products, or benefits that would
accrue to the public together with the
estimated unit cost of each type of service,
product or benefit.
9. The Philippine Budget System is guided by
two principal objectives that are vital to the
development of a progressive democratic
government, namely: (1) to carry on all
government activities under a comprehensive
fiscal plan developed, authorized and executed
in accordance with the Constitution, prevailing
statutes and the principles of sound public
management; and (2) to provide for the
periodic review and disclosure of the budgetary
status of the Government in such detail so that
persons entrusted by law with the responsibility
as well as the enlightened citizenry can
determine the adequacy of the budget actions
taken, authorized or proposed, as well as the
true financial position of the Government.
10. The Philippine budget process is comprised
of four phases. Each phase is distinctly
separate from the others but they overlap in
the implementation of the budget during the
budget year. These are:
(1) Budget Preparation government agencies
prepare and submit their budget proposals in
response to a Budget Call by the DBM.
(2) Budget Legislation also known as the
Budget Authorization Phase, and involves the
participation of both legislative houses through
its deliberations and culminates in the passing
of a General Appropriations Act.
40

(3) Budget Execution this phase is primarily
the function of the DBM, which is tasked to: (1)
issue the programs and guidelines for the
release of funds; (2) prepare an Allotment and
Cash Release Program (3) release allotments;
and (4) issue disbursement authorities. Actual
disbursement or spending of government funds
terminates the Budget Execution Phase.
(4) Accountability An agencys accountability
may be examined and evaluated through (1)
performance targets and outcomes; (2) budget
accountability reports; (3)review of agency
performance; and (4) audit conducted by the
Commission on Audit (COA).
Public Expenditures
11. Public or government expenditures are
generally classified into two categories,
specifically:
(1) Capital expenditures or outlays: the
expenses whose usefulness lasts for more than
one year, and which add to the assets of the
Government, including investments in the
capital of GOCCs and their subsidiaries.
(2) Current operating expenditures: the
purchases of goods and services in current
consumption the benefit of which does not
extend beyond the fiscal year. The two
components of current expenditures are those
for personal services (PS), and those for
maintenance and other operating expenses
(MOOE).
12. Public expenditures are also broadly
grouped according to their functions into:
(1)economic development
expenditures (i.e.,expenditures on agriculture
and natural resources, transportation and
communications, commerce and industry, and
other economic development efforts);
(2)social services or social development
expenditures (i.e., government outlay on
education, public health and medicare, labor
and welfare and others);
(3) general government or general public
services expenditures (i.e., expenditures for the
general government, legislative services, the
administration of justice, and for pensions and
gratuities);
(4) national defense expenditures (i.e., sub-
divided into national security expenditures and
expenditures for the maintenance of peace and
order);
and
(5)public debt
13. Public expenditures may further be
classified according to the nature of funds:
(1) General fund,
(2) Special fund
(3) Bond fund
Public Revenues
14. Public revenues cover all income or receipts
of the government treasury used to support
government expenditures.
15. Public revenues are classified as either:
(1) General Income (service income, forex
gains, donations, etc) or
(2) Specific Income (taxes, fines)
16. In the Philippines, public revenues are
generally derived from the following sources, to
wit:
(1) Tax revenues (i.e., compulsory contributions
to finance government activities);
(2) capital revenues (i.e., proceeds from sales
of fixed capital assets or scrap thereof and
public domain, and gains on such sales like sale
of public lands, buildings and other structures,
equipment, and other properties recorded as
fixed assets);
(3) Grants (i.e., voluntary contributions and aids
given to the Government for its operation on
specific purposes in the form of money and/or
materials, and do not require any monetary
commitment on the part of the recipient);
(4) extra-ordinary income (i.e., repayment of
loans and advances made by government
corporations and local governments and the
41
receipts and shares in income of the Banko
Sentral ng Pilipinas, and other receipts); and
(5) public borrowings (i.e., proceeds of
repayable obligations generally with interest
from domestic and foreign creditors of the
Government in general, including the National
Government and its political subdivisions)
Appropriation vs Allotments
17. Appropriation is the act by which Congress
designates a particular fund, or sets apart a
specified portion of the public revenue or of the
money in the public treasury, to be applied to
some general object of governmental
expenditure, or to some individual purchase or
expense.
18. Allotments, which authorize an agency to
enter into obligations, are issued by the DBM.
Allotments are lesser in scope than
appropriations, in that the latter embrace the
general legislative authority to spend.
Allotments may be released in two forms
through a comprehensive Agency Budget
Matrix (ABM), or, individually, by Special
Allotment Release Order (SARO).
NCA vs SARO
19. In order to settle the obligations incurred by
the agencies, the DBM issues a disbursement
authority so that cash may be allocated in
payment of the obligations. A cash or
disbursement authority that is periodically
issued is referred to as a Notice of Cash
Allocation (NCA), which issuance is based upon
an agencys submission of its Monthly Cash
Program and other required documents. The
NCA specifies the maximum amount of cash
that can be withdrawn from a government
servicing bank for the period indicated.
20. A SARO, as defined by the DBM itself in its
website, is [a] specific authority issued to
identified agencies to incur obligations not
exceeding a given amount during a specified
period for the purpose indicated. It shall cover
expenditures the release of which is subject to
compliance with specific laws or regulations, or
is subject to separate approval or clearance by
competent authority.
21. Based on this definition, it may be gleaned
that a SARO only evinces the existence of an
obligation and not the directive to
pay.Practically speaking, the SARO does not
have the direct and immediate effect of placing
public funds beyond the control of the
disbursing authority. In fact, a SARO may even
be withdrawn under certain circumstances
which will prevent the actual release of funds.
On the other hand, the actual release of funds
is brought about by the issuance of the Notice
of Cash Allotment (NCA), which is subsequent
to the issuance of a SARO. (Belgica v. Executive
Secretary)
DAP
22. DAP was designed as a stimulus package
intended to fast-track public spending and to
push economic growth by investing on high-
impact budgetary PAPs (program, activity or
project) to be funded from the savings
generated during the year as well as from
unprogrammed funds.
DAP is not an appropriation measure;
hence, no appropriation law is required to
adopt or to implement it
23. In the context of the DAPs adoption and
implementation being a function pertaining to
the Executive as the main actor during
the Budget Execution Stage under its
constitutional mandate to faithfully execute the
laws, including the GAAs, Congress did not
need to legislate to adopt or to implement the
DAP. Congress could appropriate but would
have nothing more to do during the Budget
Execution Stage.
24. The President, in keeping with his duty to
faithfully execute the laws, had sufficient
discretion during the execution of the budget to
adapt the budget to changes in the countrys
economic situation. He could adopt a plan like
the DAP for the purpose. He could pool the
savings and identify the PAPs to be funded
under the DAP. The pooling of savings pursuant
to the DAP, and the identification of the PAPs to
be funded under the DAP did not involve
appropriation in the strict sense because the
money had been already set apart from the
public treasury by Congress through the GAAs.
42
In such actions, the Executive did not usurp the implementing law for it to be operative. That
power vested in Congress under Section 29(1), law, generally, is the GAA of a given fiscal year.
Article VI of the Constitution. To comply with the first requisite, the GAAs
should expressly authorize the transfer of
Section 25(5), Article VI of the funds.
Constitution
29. The relevant provisions in the 2011 and
25. Section 25(5) of Article VI provides: 2012 GAA which were cited as basis by the
DBM for the transfer of funds provides:
No law shall be passed authorizing any
transfer of appropriations; however, the President xxx hereby authorized
the President, the President of the Senate, to augment any item in this Act from savings in
the Speaker of the House of Representatives, other items of their respective appropriations.
the Chief Justice of the Supreme Court, and
the heads of Constitutional Commissions may, 30. The provision of the GAAs of 2011 and 2012
by law, be authorized to augment any item in were textually unfaithful to the Constitution
the general appropriations law for their for not carrying the phrase for their respective
respective offices from savings in other items of offices contained in Section 25(5). The impact
their respective appropriations. (emphasis and of the phrase for their respective offices was
underscoring supplied) to authorize only transfers of funds within their
offices (i.e., in the case of the President, the
26. We should interpret Section 25(5), in the transfer was to an item of appropriation within
context of a limitation on the Presidents the Executive). The provisions carried a
discretion over the appropriations during the different phrase (to augment any item in this
Budget Execution Phase Act), and the effect was that the 2011 and
2012 GAAs thereby literally allowed the transfer
27. The transfer of appropriated funds, to be of funds from savings to augment any item in
valid under Section 25(5), must be made upon the GAAs even if the item belonged to an office
a concurrence of the following requisites, outside the Executive. To that extent the 2011
namely: and 2012 GAAs contravened the Constitution.
At the very least, the aforequoted provisions
(1) There is a law authorizing the President, the cannot be used to claim authority to transfer
President of the Senate, the Speaker of the appropriations from the Executive to another
House of Representatives, the Chief Justice of branch, or to a constitutional commission.
the Supreme Court, and the heads of the
Constitutional Commissions to transfer funds Second requisite (There were no savings
within their respective offices; from which funds could be sourced for the
DAP)
(2) The funds to be transferred are savings
generated from the appropriations for their 31. Savings should be actual. The court
respective offices; and construes savings strictly against expanding
the scope of the power to augment. The power
(3) The purpose of the transfer is to augment to augment was to be used only when the
an item in the general appropriations law for purpose for which the funds had been allocated
their respective offices. were already satisfied, or the need for such
funds had ceased to exist, for only then could
First requisite (GAAs of 2011 and 2012 savings be properly realized. This interpretation
lacked valid provisions to authorize prevents the Executive from unduly
transfers of funds under the DAP; hence, transgressing Congress power of the purse.
transfers under the DAP were
unconstitutional) 32. Unreleased appropriations and withdrawn
unobligated allotments under the DAP were not
28. Section 25(5), not being a self-executing savings, and the use of such appropriations
provision of the Constitution, must have an
43
contravened Section 25(5), Article VI of the
1987 Constitution.
33. Unreleased appropriations refer to
appropriations with allotments but without
disbursement authority.
34. The balances of appropriations that
remained unexpended at the end of the fiscal
year were to be reverted to the General Fund.
This was the mandate of Section 28, Chapter
IV, Book VI of the Administrative Code. The
Executive could not circumvent this provision
by declaring unreleased appropriations and
unobligated allotments as savings prior to the
end of the fiscal year.
Third requisite (No funds from savings
could be transferred under the DAP to
augment deficient items not provided in
the GAA)
35. It appears that the savings pooled under
the DAP were allocated to PAPs that were not
covered by any appropriations in the pertinent
GAAs. Any PAP requiring expenditure that did
not receive any appropriation under the GAAs
could only be a new PAP, any funding for which
would go beyond the authority laid down by
Congress in enacting the GAAs.
36. Although the Executive was authorized to
spend in line with its mandate to faithfully
execute the laws (which included the GAAs),
such authority did not translate to unfettered
discretion that allowed the President to
substitute his own will for that of Congress. He
was still required to remain faithful to the
provisions of the GAAs, given that his power to
spend pursuant to the GAAs was but a
delegation to him from Congress. Verily, the
power to spend the public wealth resided in
Congress, not in the Executive.
Third requisite (Cross border
augmentations from savings were
prohibited by the Constitution)
37. By providing that the President, the
President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of
the Supreme Court, and the Heads of the
Constitutional Commissions may be authorized
to augment any item in the GAA for their
respective offices, Section 25(5) has
delineated borders between their offices, such
that funds appropriated for one office
are pohibited from crossing over to another
office even in the guise of augmentation of a
deficient item or items. Thus, we call such
transfers of funds cross-border transfers or
cross-border augmentations.
38. Cross-border transfers, whether as
augmentation, or as aid, are prohibited under
Section 25(5)
39. It appears that DAP funds were transferred
to the COA (P143.7 Million) and House of
Representative (P250 Million) Those transfers of
funds, being from the Executive, constituted
cross-border augmentations.
Impoundment
40. Impoundment refers to a refusal by the
President, for whatever reason, to spend funds
made available by Congress. It is the failure to
spend or obligate budget authority of any
type. (Philconsa vs Enriquez)
41. The withdrawal of unobligated allotments
under the DAP should not be regarded as
impoundment because it entailed only the
transfer of funds, not the retention or deduction
of appropriations.
Sourcing the DAP from unprogrammed
funds despite the original revenue targets
not having been exceeded was invalid
42. The unprogrammed funds were treated as
separate sources of funds. Even so, the release
and use of the unprogrammed funds were still
subject to restrictions for the GAAs precisely
specified the instances when the
unprogrammed funds could be released and the
purposes for which they could be used.
43. Unprogrammed appropriations are
appropriations that provided standby authority
to incur additional agency obligations for
priority PAPs when revenue collections
exceeded targets, and when additional foreign
funds are generated.
44. Contrary to DBM's claims, the collection of
additional revenues from new sources did not
44
warrant the release of the unprogrammed
funds. Hence, even if the revenues not
considered in the BESFs were collected or
generated, the basic condition that the revenue
collections should exceed the revenue targets
must still be complied with in order to justify
the release of the unprogrammed funds. That
there were additional revenues from sources
not considered in the revenue target would not
be enough. The total revenue collections must
still exceed the original revenue targets to
justify the release of the unprogrammed
funds (other than those from newly-approved
foreign loans).
45. The revenue targets should be considered
as a whole, not individually; otherwise, we
would be dealing with artificial revenue
surpluses. The requirement that revenue
collections must exceed revenue target should
be understood to mean that the revenue
collections must exceed the total of the
revenue targets stated in the BESF.
Equal protection
46. The claim that the Executive discriminated
against some legislators on the ground alone of
their receiving less than the others could not of
itself warrant a finding of contravention of the
Equal Protection Clause. The denial of equal
protection of any law should be an issue to be
raised only by parties who supposedly suffer it,
and, in these cases, such parties would be the
few legislators claimed to have been
discriminated against in the releases of funds
under the DAP. The reason for the requirement
is that only such affected legislators could
properly and fully bring to the fore when and
how the denial of equal protection occurred,
and explain why there was a denial in their
situation.
Public accountability
47. Anent the principle of public accountability
being transgressed because the adoption and
implementation of the DAP constituted an
assumption by the Executive of Congress
power of appropriation, we have already held
that the DAP and its implementing issuances
were policies and acts that the Executive could
properly adopt and do in the execution of the
GAAs to the extent that they sought to
implement strategies to ramp up or accelerate
the economy of the country.
Doctrine of Operative Fact
48. The doctrine of operative fact recognizes
the existence of the law or executive act prior
to the determination of its unconstitutionality
as an operative fact that produced
consequences that cannot always be erased,
ignored or disregarded. In short, it nullifies the
void law or executive act but sustains its
effects. It provides an exception to the general
rule that a void or unconstitutional law
produces no effect. But its use must be
subjected to great scrutiny and circumspection,
and it cannot be invoked to validate an
unconstitutional law or executive act, but is
resorted to only as a matter of equity and fair
play. It applies only to cases where
extraordinary circumstances exist, and only
when the extraordinary circumstances have
met the stringent conditions that will permit its
application.
49. The doctrine of operative fact applicable to
the adoption and implementation of the DAP.
The doctrine of operative fact extends to a void
or unconstitutional executive act. The term
executive act is broad enough to include any
and all acts of the Executive, including those
that are quasi-legislative and quasi-judicial in
nature. The term executive act is broad
enough to encompass decisions of
administrative bodies and agencies under the
executive department which are subsequently
revoked by the agency in question or nullified
by the Court.(Hacienda Luisita, Inc. v.
Presidential Agrarian Reform Council, G.R.
50. The doctrine of operative fact can apply
only to the PAPs that can no longer be undone,
and whose beneficiaries relied in good faith on
the validity of the DAP, but cannot apply to the
authors, proponents and implementors of the
DAP, unless there are concrete findings of good
faith in their favor by the proper tribunals
determining their criminal, civil, administrative
and other liabilities
11. Case Summary
Belgica v. Executive Secretary Ochoa
(2013)
45
G.R. No. 208566 | 2013-11-19
Subject:
Justiciable Controversy, Ripeness for
Adjudication, Political Question, Locus
Standi, Res Judicata, Stare Decisis, Pork Barrel,
Congressional Pork Barrel, Presidential Pork
Barrel, Mandamus, Right to Information, SARO,
Operative Fact Doctrine
Facts:
Before the Court are consolidated petitions,
taken under Rule 65 of the Rules of Court, all of
which assail the constitutionality of the Pork
Barrel System.
Pork Barrell refers to an appropriation of
government spending meant for localized
projects and secured solely or primarily to bring
money to a representative's district.In the
Philippines, the pork barrel has been
commonly referred to as lump-sum,
discretionary funds of Members of the
Legislature, although, its usage would evolve in
reference to certain funds of the President such
as the Malampaya Funds and the Presidential
Social Fund.
The Malampaya Funds was a special fund
created under PD 910 issued by then President
Ferdinand E. Marcos for the development of
indigenous energy resources vital to economic
growth.
The Presidential Social Fund is sourced from the
share of the government in the aggregate gross
earnings of PAGCORthrough which the President
provides direct assistance to priority programs
and projects not funded under the regular
budget.
In 1996, an anonymous source later identified
as Former Marikina City Romeo Candazo
revealed that huge sums of government money
went into the pockets of legislators as
kickbacks.
in 2004, several concerned citizens sought the
nullification of the PDAF for being
unconstitutional. Unfortunately, for lack of any
pertinent evidentiary support that illegal
misuse of PDAF in the form of kickbacks has
become a common exercise of unscrupulous
Members of Congress, the petition was
dismissed.
In July 2013, NBI began its probe into
allegations that the government has been
defrauded of some P10 Billion over the past 10
years by a syndicate using funds from the pork
barrel of lawmakers and various government
agencies for scores of ghost projects. The
investigation was spawned by sworn affidavits
of six whistle-blowers who declared that JLN
Corporation (stands for Janet Lim Napoles) had
facilitated the swindling of billions of pesos
from the public coffers for ghost projects
using no fewer than 20 dummy non-
government organizations for an entire decade.
In August 2013, the Commission on Audit
released report revealing substantial
irregularities in the disbursement and utilization
of PDAF by the Congressmen during the Arroyo
administration.
As for the 'Presidential Pork Barrel', whistle-
blowers alleged that "at least P900 Million from
royalties in the operation of the Malampaya gas
project off Palawan province intended for
agrarian reform beneficiaries has gone into a
dummy NGO.
Spurred in large part by the findings contained
in the CoA Report and the Napoles controversy,
several petitions were lodged before the Court
similarly seeking that the Pork Barrel System be
declared unconstitutional
Held:
I. Procedural issues
Justiciable Controversy
1. By virtue of Section 1, Article VIII of the 1987
Constitution, judicial power operates only when
there is an actual case or controversy.
2. Jurisprudence provides that an actual case or
controversy is one which 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.
46

3. The Court finds that there exists an actual
and justiciable controversy in these cases. The
requirement of contrariety of legal rights is
clearly satisfied by the antagonistic positions of
the parties on the constitutionality of the Pork
Barrel System. Also, the challenged funds and
the provisions allowing for their utilization
such as the 2013 GAA for the PDAF, PD 910 for
the Malampaya Funds and PD 1869 for the
Presidential Social Fund are currently existing
and operational; hence, there exists an
immediate or threatened injury to petitioners as
a result of the unconstitutional use of these
public funds.
Ripeness for Adjudication
4. Related to the requirement of an actual case
or controversy is the requirement of ripeness,
meaning that the questions raised for
constitutional scrutiny are already ripe for
adjudication. A question is ripe for
adjudicationwhen the act being challenged has
had a direct adverse effect on the individual
challenging it. It is a prerequisite that
something had then been accomplished or
performed by either branch before a court may
come into the picture, and the petitioner must
allege the existence of an immediate or
threatened injury to itself as a result of the
challenged action
5. The cases at present have not become moot.
A case becomes moot when there is no more
actual controversy between the parties or no
useful purpose can be served in passing upon
the merits.
6. The Court observes that respondents
proposed line-item budgeting scheme would
not terminate the controversy since said reform
is geared towards the 2014 budget, and not the
2013 PDAF Article which, being a distinct
subject matter, remains legally effective and
existing.
7. Neither will the Presidents declaration that
he had already abolished the PDAF render the
issues on PDAF moot precisely because the
Executive branch of government has no
constitutional authority to nullify or annul its
legal existence. By constitutional design, the
annulment or nullification of a law may be done
either by Congress, through the passage of a
repealing law, or by the Court, through a
declaration of unconstitutionality
8. Moreover, the Court will decide cases,
otherwise moot, if: (a) there is a grave violation
of the Constitution; (b) the exceptional
character of the situation and the paramount
public interest is involved; (c) when the
constitutional issue raised requires formulation
of controlling principles to guide the bench, the
bar, and the public; (d) the case is capable of
repetition yet evading review. All the four
exceptions are applicable in this case.
Political Question
9. The issues raised before the Court do not
present political but legal questions which are
within its province to resolve. A political
question refers to those questions which, under
the Constitution, are to be decided by the
people in their sovereign capacity, or in regard
to which full discretionary authority has been
delegated to the Legislature or executive
branch of the Government. It is concerned with
issues dependent upon the wisdom, not
legality, of a particular measure.
10. The intrinsic constitutionality of the Pork
Barrel System is not an issue dependent upon
the wisdom of the political branches of
government but rather a legal one which the
Constitution itself has commanded the Court to
act upon. More importantly, the present
Constitution has not only vested the Judiciary
the right to exercise judicial power but
essentially makes it a duty to proceed therewith
under the expanded concept of judicial power
under Section1, Article 8 of the 1987
Constitution
Locus Standi
11. Unless a person is injuriously affected in
any of his constitutional rights by the operation
of statute or ordinance, he has no standing.
12. Petitioners, as taxpayers, possess the
requisite standing to question the validity of the
existing Pork Barrel System under which the
taxes they pay have been and continue to be
utilized. They are bound to suffer from the
unconstitutional usage of public funds.
47

13. Moreover, as citizens, petitiones have
equally fulfilled the standing requirement given
that the issues they have raised may be
classified as matters of transcendental
importance, of overreaching significance to
society, or of paramount public interest
Res Judicata (does not apply)
14. Res judicata means a matter adjudged.
The focal point of res judicata is
the judgment.The res judicata principle states
that a judgment on the merits in a previous
case rendered by a court of competent
jurisdiction would bind a subsequent case if,
between the first and second actions, there
exists an identity of parties, of subject matter,
and of causes of action.
15. The res judicata principle cannot apply in
this case. The required identity is not present
since Philconsa and LAMP, respectively,
involved constitutional challenges against the
1994 CDF Article and 2004 PDAF Article,
whereas the cases at bar call for a broader
constitutional scrutiny of the entire Pork Barrel
System. Also, the ruling in LAMP is essentially a
dismissal based on a procedural technicality
and, thus, hardly a judgment on the merits.
Stare Decisis (does not apply)
16. Stare decisis non quieta et movere (or
simply, stare decisis) means follow past
precedents and do not disturb what has been
settled. The focal point of stare decisis is
the doctrine created. The stare decisis
principle, entrenched under Article 8 of the Civil
Code, evokes the general rule that, for the sake
of certainty, a conclusion reached in one case
should be doctrinally applied to those that
follow if the facts are substantially the same,
even though the parties may be different. It
proceeds from the first principle of justice that,
absent any powerful countervailing
considerations, like cases ought to be decided
alike.
17. The Philconsa resolution was a limited
response to a separation of powers problem,
specifically on the propriety of conferring post-
enactment identification authority to Members
of Congress. On the contrary, the present cases
call for a more holistic examination of the entire
Pork Barrel System. The complexity of the
issues and the broader legal analyses herein
warranted may be, therefore, considered as a
powerful countervailing reason against a
wholesale application of the stare decisis
principle.
18. In addition, the Court observes that the
Philconsa ruling was actually riddled with
inherent constitutional inconsistencies which
similarly countervail against a full resort to
stare decisis.
19. As for LAMP, suffice it to restate that the
said case was dismissed on a procedural
technicality and, hence, has not set any
controlling doctrine susceptible of current
application to the substantive issues in these
cases.
II. Substantive issues
Pork Barrel System
20. The Court defines the Pork Barrel System as
the collective body of rules and practices that
govern the manner by which lump-sum,
discretionary funds, primarily intended for local
projects, are utilized through the respective
participations of the Legislative and Executive
branches of government, including its
members.
21. The Pork Barrel System involves two (2)
kinds of lump-sum discretionary funds:
(a) Congressional Pork Barrel-- a kind of lump-
sum, discretionary fund wherein legislators,
either individually or collectively organized into
committees, are able to effectively control
certain aspects of the funds utilization through
various post-enactment measures and/or
practices.
(b) Presidential Pork Barrel-- a kind of lump-
sum, discretionary fund which allows the
President to determine the manner of its
utilization.
Constitutionality of the Congressional
Pork Barrel
48
22. The Supreme Court declared that
the Priority Development Assistance Fund
(PDAF) and its predecessor, the Countrywide
Development Fund
(CDF) are unconstitutional.
23. The Supreme Court declared the Pork
Barrel System as unconstitutional on the
following grounds:
(a) Separation of Powers. Under the 2013 PDAF
Article, legislators have been authorized to
participate in the various operational aspects
of budgeting, including the evaluation of work
and financial plans for individual activities and
the regulation and release of funds, in
violation of the separation of powers principle.
From the moment the law becomes effective,
any provision of law that empowers Congress or
any of its members to play any role in the
implementation or enforcement of the law
violates the principle of separation of powers
and is thus unconstitutional.
(b) Non-delegability of legislative power. The
power to appropriate is lodged in Congress and
must be exercised only through legislation,
pursuant to Section 29(1), Article VI of the 1987
Constitution. Insofar as the 2013 PDAF Article
has conferred unto legislators the power of
appropriation by giving them personal,
discretionary funds from which they are able to
fund specific projects which they themselves
determine, it has violated the principle of non-
delegability of legislative power;
(c) Checks and balances. Even without its post-
enactment legislative identification feature, the
2013 PDAF Article would remain constitutionally
flawed since the lump-sum amount of P24.79
Billion would be treated as a mere funding
source allotted for multiple purposes of
spending. This setup connotes that the
appropriation law leaves the actual amounts
and purposes of the appropriation for further
determination and, therefore, does not readily
indicate a discernible item which may be
subject to the Presidents power of item veto.
Insofar as it has created a system of budgeting
wherein items are not textualized into the
appropriations bill, it has flouted the prescribed
procedure of presentment and, in the process,
denied the President the power to veto items
(d) Public Accountability. To a certain extent,
the conduct of oversight would be tainted as
said legislators, who are vested with post-
enactment authority, would, in effect, be
checking on activities in which they themselves
participate. Also, this very same concept of
post-enactment authorization runs afoul of
Section 14, Article VI of the 1987 Constitution.
Allowing legislators to intervene in the various
phases of project implementation renders them
susceptible to taking undue advantage of their
own office.
(e) Political dynasty. Section 26, Article II of the
1987 Constitution is considered as not self-
executing due to the qualifying phrase as may
be defined by law. In this respect, said
provision does not, by and of itself, provide a
judicially enforceable constitutional right but
merely specifies a guideline for legislative or
executive action.
(f) Local autonomy. The gauge of PDAF and CDF
allocation/division is based solely on the fact of
office, without taking into account the specific
interests and peculiarities of the district the
legislator represents. As a result, a district
representative of a highly-urbanized metropolis
gets the same amount of funding as a district
representative of a far-flung rural province
which would be relatively underdeveloped
compared to the former. This concept of
legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local
Development Councils (LDCs).
Insofar as it has authorized legislators, who are
national officers, to intervene in affairs of purely
local nature, despite the existence of capable
local institutions, it has likewise subverted
genuine local autonomy.
Constitutionality of the Presidential Pork
Barrel
24. While the designation of a determinate or
determinable amount for a particular public
purpose is sufficient for a legal appropriation to
exist, the appropriation law must contain
adequate legislative guidelines if the same law
delegates rule-making authority to the
Executive either for the purpose of (a) filling up
the details of the law for its enforcement,
49
known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual
operation, referred to as contingent rule-
making.
25. The phrase and for such other purposes as
may be hereafter directed by the President
under Section 8 of PD 910 constitutes an undue
delegation of legislative power insofar as it
does not lay down a sufficient standard to
adequately determine the limits of the
Presidents authority with respect to the
purpose for which the Malampaya Funds may
be used. As it reads, the said phrase gives the
President wide latitude to use the Malampaya
Funds for any other purpose he may direct and,
in effect, allows him to unilaterally appropriate
public funds beyond the purview of the law.
26. Hence, insofar as it has conferred to the
President the power to appropriate
funds intended by law for energy-related
purposes only to other purposes he may deem
fit as well as other public funds under the broad
classification of priority infrastructure
development projects, it has transgressed the
principle of non-delegability.
Previous Rulings on PDAF/CDF
27. In Philconsa v. Enriquez, G.R. No. 113105,
August 19, 1994, the Supreme Court upheld the
constitutionality of the then known Countrywide
Development Fund (CDF). The petitioners in the
said case claimed that the power given to the
members of Congress to propose and identify
the projects and activites to be funded by the
CDF is an encroachment by the legislature on
executive power. They argued that the proposal
and identification of the projects do not involve
the making of laws or the repeal and
amendment thereof which is the only function
given to the Congress by the Constitution.
The Supreme Court held that the power of
appropriation carries with it the power to
specify the project or activity to be funded
under the appropriation law. It can be as
detailed and as broad as Congress wants it to
be. The CDF is explicit that it shall be used "for
infrastructure, purchase of ambulances and
computers and other priority projects and
activities and other credit facilities to qualified
beneficiaries..." It was Congress itself that
determined the purposes for the appropriation.
On the other hand, the Executive was
responsive for the implementation of the
priority projects specified in the law. The
Supreme Court emphasized that the authority
given to the members of Congress is only to
propose and identify projects to be
implemented by the President. Under the GAA
of 1994, the President must examine whether
the proposals submitted by the members of
Congress fall within the specific items of
expenditures for which the CDF was set up, and
if qualified, the President next determines
whether they are in line with other projects
planned for the locality. Thereafter, if the
proposed projects qualify for funding, it is the
President who shall implement them. The
proposals and identifications made by the
members of Congress are merely
recommendatory.
In addition, the Supreme Court stated that the
CDF is a recognition that individual members of
Congress, far more than the President and their
congressional colleagues are likely o be
knowledgeable about the needs of their
respective constituents and the priority to be
given to each project.
28. In Sarmiento v. Treasurer, G.R. Nos. 125680
& 126313, September 4, 2001, the petitioners
questioned the constitutionality of the CDF
under the GAA of 1996. Seeking the reversal
of Philconsa v. Enriquez, the petitioners alleged
that the proposal and identification of projects
by members of Congress were not merely
recommendatory considering that requests for
releases of funds under the CDF are automically
released. The Solicitor General argued that
since the questioned provision is basically the
same provision found in the 1994 GAA held as
constitutional by the Supreme Court
in Philconsa v. Enriquez, the instant case should
be resolved in the same manner, following the
principle of stare decisis.
The Supreme Court upheld the
constitutionality of the CDF under the
1996 GAA.
29. In League Against Monopoly and Poverty
(LAMP) v. Secretary of Budget and
Management, G.R. 164987, April 21, 2012,
petitioners assailed the constitutionality and
50
legality of the implementation of the Priority
Development Assistance Fund (PDAF) as
provided for in the GAA of 2004. According to
the petitioners, the provision in the GAA as
regards the PDAF is silent and therefore
prohibits an automatic allocation of lump sums
to individual senators and congressmen for
funding of projects. It does not give the
individual members of Congress the mandate
to propose, select and identify programs and
projects to be funded out of PDAF. The
petitioners submitted that such a situation
violates the principle of separation of powers
because in receiving and thereafter spending
funds for their chosen projects, the members of
Congress in effect intruded into an executive
function. Further, the authority to propose and
select projects does not pertain to legislation. It
is, in fact, a non-legislative function devoid of
constitutional sanction and therefore
impermissible and must be considered nothing
less than malfeasance.
The Supreme Court upheld the constitutionality
of the PDAF. The Court stated that no
convincing proof was presented showing that,
indeed there were direct releases of funds to
members of Congresss, who actually spent
them according to their sole discretion. Not
even a documentation of the disbursement of
funds by the DBM in favor of the members of
Congres was presented by the petitioner to
convince the Court to probe into the truth of
their claims. The Court further stated that the
authority granted to members of Congress to
propose and select projects was already upheld
in Philconsa v. Enriquez, and there is no need to
review or reverse the pronouncements made in
said case so long as there is no showing of a
direct participation of legislators in the actual
spending of the budget.
Mandamus
30. Petitioners prayed that the Executive
Secretary and/or the Department of Budget and
Management be ordered to provide the public
and the Commission on Audit complete
lists/schedules or detailed reports related to the
availments and utilization of the PDAF and
Malampaya funds.
31. Petitioners prayer was grounded on Section
28, Article II (policy of full public disclosure) and
Section 7, Article III (right of the people to
information on matters of public concern) of the
1987 Constitution.
32. The court denied the prayer of petitioner on
procedural grounds. The proper remedy to
invoke the right to information is to file
a petition for mandamus. Citing Legaspi vs CSC:
the duty to disclose the information of public
concern, and to afford access to public records
cannot be discretionary on the part of said
agencies. Xxx The constitutional duty, not
being discretionary, its performance may be
compelled by a writ of mandamus in a proper
case
33. Moreover, in the case of Valmonte v.
Belmonte Jr., it has been clarified that the right
to information does not include the right to
compel the preparation of lists, abstracts,
summaries and the like. In the same case, it
was stressed that it is essential that the
applicant has a well defined, clear and certain
legal right to the thing demanded and that it is
the imperative duty of defendant to perform
the act required. Hence, without the foregoing
substantiations, the Court cannot grant a
particular request for information.
34. In these cases, aside from the fact that
none of the petitions are in the nature of
mandamus actions, the Court finds that
petitioners have failed to establish a "a well-
defined, clear and certain legal right" to be
furnished by the Executive Secretary and/or the
DBM of their requested PDAF Use Schedule/List
and Presidential Pork Use Report. Neither did
petitioners assert any law or administrative
issuance which would form the bases of the
latters duty to furnish them with the
documents requested
35. Nevertheless, petitioners are not denied
access to official documents which are already
existing and of public record.
Inclusion of Funds in Budgetary
Deliberations
36. The Court also denied petitioners' prayer to
order the inclusion of the subject funds in the
budgetary deliberations of Congress as the
same is a matter left to the prerogative of the
political branches of government.
51
TRO Enjoining Release of Remaining PDAF
37. In response to the Courts September 10,
2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013,
the DBM issued Circular 2013-8 which
authorized the continued implementation and
disbursement of PDAF funds as long as they
are: (a) covered by a Special Allotment Release
Order (SARO); and (b) that said SARO had been
obligated by the implementing agency
concerned prior to the issuance of the Courts
September 10, 2013 TRO.
38. As to the issue of lifting the TRO, the
present decision has rendered it moot and
academic. The unconstitutionality of the 2013
PDAF Article as declared herein has the
consequential effect of converting the
temporary injunction into a permanent one.
Hence, from the promulgation of this Decision,
the release of the remaining PDAF funds for
2013, among others, is now permanently
enjoined.
39. As to the coverage and application of the
TRO, the Court agreed with the petitioners
position that "the issuance of the SARO does
not yet involve the release of funds under the
PDAF, as release is only triggered by the
issuance of a Notice of Cash Allocation (NCA).
As such, PDAF disbursements, even if covered
by an obligated SARO, should remain enjoined.
A SARO only evinces the existence of an
obligation and not the directive to pay.
Practically speaking, the SARO does not have
the direct and immediate effect of placing
public funds beyond the control of the
disbursing authority. In fact, a SARO may even
be withdrawn under certain circumstances
which will prevent the actual release of funds
40. Thus, unless an NCA has been issued,
public funds should not be treated as funds
which have been "released." In this respect,
therefore, the disbursement of 2013 PDAF
funds which are only covered by obligated
SAROs, and without any corresponding NCAs
issued, must, at the time of this Decisions
promulgation, be enjoined and consequently
reverted to the unappropriated surplus of the
general fund
Operative Fact Doctrine
41. the Courts pronouncement anent the
unconstitutionality of (a) the 2013 PDAF Article
and its Special Provisions, (b) all other
Congressional Pork Barrel provisions similar
thereto, and (c) the phrases (1) "and for such
other purposes as may be hereafter directed by
the President" under Section 8 of PD 910, and
(2) "to finance the priority infrastructure
development projects" under Section 12 of PD
1869, as amended by PD 1993, must only be
treated as prospective in effect in view of the
operative fact doctrine.
42. The operative fact doctrine exhorts the
recognition that until the judiciary, in an
appropriate case, declares the invalidity of a
certain legislative or executive act, such act is
presumed constitutional and thus, entitled to
obedience and respect and should be properly
enforced and complied with.
12. Case Summary
Civil Liberties Union v. Executive
Secretary
G.R. No. 83896 | 1991-02-22
Subject:
Constitutional Prohibition on Holding Multiple
Offices; Positions held in Ex-Officio capacity; De
Facto Officers; Statutory Construction of
Constitutional Prohibitions
Facts:
(Former) President Corazon Aquino issued
Executive Order No. 284, allowing appointive
officials of the Executive Department (members
of the Cabinet, their undersecretaries and
assistant secretaries) to hold, in addition to his
primary position, not more than two positions in
the government and government corporations
and receive the corresponding compensation
therefor.
The constitutionality of Executive Order No. 284
is being challenged by petitioners on the
principal submission that it adds exceptions to
Section 13, Article VII other than those provided
in the Constitution.
52
 Members of Congress, members of the civil
Petitioners further argue that the exception to service in general and members of the armed
the prohibition in Section 7, par. (2), Article IX-B forces, are proof of the intent of the 1987
on the Civil Service Commission applies to Constitution to treat the President and his
officers and employees of the Civil Service in official family as a class by itself and to impose
general and that said exceptions do not apply upon said class stricter prohibitions.
and cannot be extended to Section 13, Article
VII which applies specifically to the President, 5. While all other appointive officials in the civil
Vice-President, Members of the Cabinet and service are allowed to hold other office or
their deputies or assistants. employment in the government during their
tenure when such is allowed by law or by the
Held: primary functions of their positions,members of
the Cabinet, their deputies and assistants may
Constitutionality of EO 284 do so only when expressly authorized by the
Constitution itself.
1. By ostensibly restricting the number of
positions that Cabinet members, 6. In other words, Section 7, Article IX-B is
undersecretaries or assistant secretaries may meant to lay down the general rule applicable
hold in addition to their primary position to not to all elective and appointive public officials and
more than two positions in the government and employees, while Section 13, Article VII is
government corporations, EO 284 actually meant to be the exception applicable only to
allows them to hold multiple offices or the President, the Vice-President, Members of
employment in direct contravention to the the Cabinet, their deputies and assistants.
express mandate of Section 13, Article VII of
the 1987 Constitution prohibiting them from Exception to Prohibition on Multiple
doing so, unless otherwise provided in the 1987 Offices
Constitution itself.
7. The prohibition under Section 13, Article VII
Constitutional Prohibition on Holding is not to be interpreted as covering positions
Multiple Offices held without additional compensation in ex-
officio capacities as provided by law and as
2. The prohibition imposed on the President and required by the primary functions of the
his official family is all-embracing and covers concerned official's office, namely:
both public and private office or employment.
(a)the Vice-President being appointed as a
member of the Cabinet under Section 3, par.
3. It is quite notable that in all Constitutional (2), Article VII; or
provisions on disqualifications to hold other
office or employment, the prohibition pertains (b) the Vice-President acting as President in
to an office or employment in the those instances provided under Section 7, pars.
government and government-owned or (2) and (3), Article VII;
controlled corporations or their subsidiaries. In
striking contrast is the wording of Section 13, (c) the Secretary of Justice being ex-officio
Article VII which states that (T)he President, member of the Judicial and Bar Council by
Vice-President, the Members of the Cabinet, virtue of Section 8 (1), Article VIII.
and their deputies or assistants shall
not, unless otherwise provided in this 8. The term ex-officio means "from office; by
Constitution, hold any other office or virtue of office." It refers to an "authority
employment during their tenure. derived from official character merely, not
expressly conferred upon the individual
4. These sweeping, all-embracing prohibitions character, but rather annexed to the official
imposed on the President and his official family, position."
which prohibitions are not similarly imposed on
other public officials or employees such as the 9. An ex-officio member of a board is one who
53
is a member by virtue of his title to a certain
office, and without further warrant or
appointment. To illustrate, by express provision
of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of
the Board of the Philippine Ports Authority, and
the Light Rail Transit Authority.
De Facto Officers
10. During their tenure in the questioned
positions, respondents may be
considered de facto officers and as such
entitled to emoluments for actual services
rendered.
11. It has been held that in cases where there
is no de jure, officer, a de facto officer, who, in
good faith has had possession of the office and
has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office,
and may in an appropriate action recover the
salary, fees and other compensations attached
to the office.
12. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that
the public should benefit by the services of an
officer de facto and then be freed from all
liability to pay any one for such services.
13. Any per diem, allowances or other
emoluments received by the respondents by
virtue of actual services rendered in the
questioned positions may therefore be retained
by them.
Statutory Construction
14. The qualifying phrase "unless otherwise
provided in this Constitution" in Section 13,
Article VII cannot possible refer to the broad
exceptions provided under Section 7, Article IX-
B of the 1987 Constitution. To construe said
qualifying phrase as such would render
nugatory and meaningless the manifest intent
and purpose of the framers of the Constitution
to impose a stricter prohibition on the
President, Vice-President, Members of the
Cabinet, their deputies and assistants with
respect to holding other offices or employment
in the government during their tenure.
15. Respondents' interpretation that Section 13
of Article VII admits of the exceptions found in
Section 7, par. (2) of Article IX-B would
obliterate the distinction so carefully set by the
framers of the Constitution as to when the high-
ranking officials of the Executive Branch from
the President to Assistant Secretary, on the one
hand, and the generality of civil servants from
the rank immediately below Assistant Secretary
downwards, on the other, may hold any other
office or position in the government during their
tenure.
16. The Court in construing a constitution
should bear in mind the object sought to be
accomplished by its adoption and the evils if
any sought to be prevented or remedied. A
doubtful provision will be examined in the light
of the history of the times and the condition
and circumstances under which the
Constitution was framed.
17. Moreover, it is a well-established rule in
constitutional construction that no one
provision of the Constitution is to be separated
from all the others, to be considered alone, but
that all the provisions bearing upon a particular
subject are to be brought into view and to be so
interpreted as to effectuate the great purposes
of the instrument. Sections bearing on a
particular subject should be considered and
interpreted together as to effectuate the whole
purpose of the Constitution and one section is
not to be allowed to defeat another, if by any
reasonable construction, the two can be made
to stand together.
18. In other words, the court must harmonize
them, if practicable, and must lean in favor of a
construction which will render every word
operative, rather than one which may make the
words idle and nugatory
19. Moreover, wherever the language used in
the constitution is prohibitory, it is to be
understood as intended to be a positive and
unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must
be given a literal interpretation to refer only to
those particular instances cited in the
Constitution itself.
13. Case Summary
Datu Michael Abas Kida vs. Senate of the
Philippines (2012)
54
G.R. No.
196271/196305/197221/197280/197282/19739
2/197454 | 2012-02-28
Subject: Synchronization mandate for national
and local elections includes ARMM elections;
Autonomous regions like the ARMM are
classified as local governments; Elections held
in autonomous regions are considered as local
elections; R.A. No. 10153 does not amend R.A.
No. 9054; Supermajority vote requirement
makes RA No. 9054 an irrepealable law which is
constitutionally prohibited; Not every
amendment to the ARMM Organic Act requires
ratification by means of a plebiscite (The
plebiscite requirement in RA No. 9054 is overly
broad and therefore unconstitutional); Congress
has no authority to extend the three-year term
limit by inserting a holdover provision in RA No.
9054; COMELEC has no authority to hold special
elections; Presidents power to appoint OICs
under RA 10153 covers both appointive and
elective positions in the ARMM; Power to
appoint OICs is not incompatible with the
Presidents power of supervision over local
governments and autonomous regions; RA No.
10153 is an interim measure; Executive is not
bound by the principle of judicial courtesy
Facts:
On October 18, 2011, the Supreme Court issued
a Decision where it upheld the constitutionality
of Republic Act No. 10153.
Pursuant to the constitutional mandate of
synchronization, RA 10153 postponed the
regional elections in the Autonomous Region in
Muslim Mindanao (ARMM) (which were
scheduled to be held on the second Monday of
August 2011) to the second Monday of
May 2013 and recognized the Presidents power
to appoint officers-in-charge (OICs) to
temporarily assume these positions upon the
expiration of the terms of the elected officials.
Hence, the present motions for reconsideration
filed by petitioners. The motions raise the
following questions:
(a) Does the Constitution mandate the
synchronization of ARMM regional elections
with national and local elections?
(b) Does RA No. 10153 amend RA No. 9054? If
so, does RA No. 10153 have to comply with the
supermajority vote and plebiscite
requirements?
(c) Is the holdover provision in RA No. 9054
constitutional?
(d) Does the COMELEC have the power to call
for special elections in ARMM?
(e) Does granting the President the power to
appoint OICs violate the elective and
representative nature of ARMM regional
legislative and executive offices?
(f) Does the appointment power granted to the
President exceed the Presidents supervisory
powers over autonomous
Held:
Synchronization mandate for national and
local elections includes ARMM elections
1. While the Constitution does not expressly
instruct Congress to synchronize the national
and local elections, the intention can be
inferred from the provisions of the Transitory
Provisions (Article XVIII) of the Constitution,
particularly Sec 1, 2 and 5. The court came to
the same conclusion in Osmea v. Commission
on Elections, where the court unequivocally
stated that the Constitution has mandated
synchronized national and local elections.
2. That the ARMM elections were not expressly
mentioned in the Transitory Provisions of the
Constitution on synchronization cannot be
interpreted to mean that the ARMM elections
are not covered by the constitutional mandate
of synchronization. We have to consider
that the ARMM, as we now know it, had not yet
been officially organized at the time the
Constitution was enacted and ratified by the
people. Keeping in mind that a constitution is
not intended to provide merely for the
exigencies of a few years but is to endure
through generations for as long as it remains
unaltered by the people as ultimate sovereign,
a constitution should be construed in the light
of what actually is a continuing instrument to
govern not only the present but also the
55
unfolding events of the indefinite future.
Although the principles embodied in a
constitution remain fixed and unchanged from
the time of its adoption, a constitution must be
construed as a dynamic process intended to
stand for a great length of time, to be
progressive and not static.
Autonomous regions like the ARMM are
classified as local governments
3. Article X of the Constitution, entitled Local
Government, clearly shows the intention of the
Constitution to classify autonomous regions,
such as the ARMM, as local governments.
Section 1 of Article X provides:
Section 1. The territorial and political
subdivisions of the Republic of the Philippines
are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions
in Muslim Mindanao and the Cordilleras as
hereinafter provided.
4. The inclusion of autonomous regions in the
enumeration of political subdivisions of the
State under the heading Local Government
indicates quite clearly the constitutional intent
to consider autonomous regions as one of the
forms of local governments.
5. That the Constitution mentions only the
national government and the local
governments, and does not make a distinction
between the local government and the
regional government, is particularly revealing,
betraying as it does the intention of the framers
of the Constitution to consider the autonomous
regions not as separate forms of government,
but as political units which, while having more
powers and attributes than other local
government units, still remain under the
category of local governments.
Elections held in autonomous regions are
considered as local elections
6. The petitioners argue that the ARMM
elections are not covered by the
synchronization mandate since they are
regional elections and not local elections.
7. Since autonomous regions are classified as
local governments, it follows that elections held
in autonomous regions are also considered as
local elections.
8. In construing provisions of the Constitution,
the first rule is verba legis, that is, wherever
possible, the words used in the Constitution
must be given their ordinary meaning except
where technical terms are employed. Applying
this principle to determine the scope of local
elections, we refer to the meaning of the word
local, as understood in its ordinary sense. As
defined in Websters Third New International
Dictionary Unabridged, local refers to
something that primarily serves the needs of a
particular limited district, often a community or
minor political subdivision. Obviously, the
ARMM elections, which are held within the
confines of the autonomous region of Muslim
Mindanao, fall within this definition.
9. To be sure, the fact that the ARMM
possesses more powers than other provinces,
cities, or municipalities is not enough reason to
treat the ARMM regional elections differently
from the other local elections. Ubi lex non
distinguit nec nos distinguire debemus. When
the law does not distinguish, we must not
distinguish.
R.A. No. 10153 does not amend R.A. No.
9054
10. Petitioners insist that the provisions of RA
No. 10153, in postponing the ARMM elections,
amend RA No. 9054.
11. A thorough reading of RA No. 9054 reveals
that it fixes the schedule for only the first ARMM
elections; it does not provide the date for the
succeeding regular ARMM elections. In fixing
the date of the ARMM elections subsequent to
the first election, RA No. 9333 and RA No.
10153 merely filled the gap left in RA No. 9054,
and do not change or revise any provision in RA
No. 9054.
12. The clear intention of Congress is to treat
the laws which fix the date of the subsequent
ARMM elections as separate and distinct from
the Organic Acts. Congress only acted
consistently with this intent when it passed RA
No. 10153 without requiring compliance with
the amendment prerequisites embodied in
56
Section 1 and Section 3, Article XVII of RA No.
9054.
Supermajority vote requirement makes RA
No. 9054 an irrepealable law which is
constitutionally prohibited
13. Since RA No. 10153 does not amend, but
merely fills in the gap in RA No. 9054, there is
no need for RA No. 10153 to comply with the
amendment requirements set forth in Article
XVII of RA No. 9054.
14. Even so, the supermajority vote
requirement set forth in Section 1, Article XVII
of RA No. 9054 ( i.e., 2/3 vote from the House of
Representatives and the Senate, voting
separately) is unconstitutional for violating the
principle that Congress cannot pass
irrepealable laws.
15. The power of the legislature to make laws
includes the power to amend and repeal these
laws. Where the legislature, by its own act,
attempts to limit its power to amend or repeal
laws, the Court has the duty to strike down
such act for interfering with the plenary powers
of Congress.
16. Every legislative body may modify or
abolish the acts passed by itself or its
predecessors. This power of repeal may be
exercised at the same session at which the
original act was passed; and even while a bill is
in its progress and before it becomes a law. This
legislature cannot bind a future legislature to a
particular mode of repeal. It cannot declare in
advance the intent of subsequent legislatures
or the effect of subsequent legislation upon
existing statutes. (see Duarte v. Dade)
17. Under our Constitution, each House of
Congress has the power to approve bills by
a mere majority vote,provided there is quorum.
In requiring all laws which amend RA No. 9054
to comply with a higher voting requirement (2/3
vote) than what the Constitution provides,
Congress, which enacted RA No. 9054, clearly
violated the very principle established
in Duarte. To reiterate, the act of one legislature
is not binding upon, and cannot tie the hands
of, future legislatures. .
18. One Congress cannot limit or reduce the
plenary legislative power of succeeding
Congresses by requiring a higher vote threshold
than what the Constitution requires to enact,
amend or repeal laws. No law can be passed
fixing such a higher vote threshold because
Congress has no power, by ordinary legislation,
to amend the Constitution.
Not every amendment to the ARMM
Organic Act requires ratification by means
of a plebiscite (The plebiscite requirement
in RA No. 9054 is overly broad and
therefore unconstitutional)
19. Petitioners' contention that the plebiscite
requirement applies to all amendments of RA
No. 9054 is also struck down for being
an unreasonable enlargement of the plebiscite
requirement set forth in the Constitution.
20. Section 18, Article X of the Constitution
provides that the creation of the autonomous
region shall be effective when approved
by majority of the votes cast by the constituent
units in a plebiscite called for the purpose.
21. We interpreted this to mean that only
amendments to, or revisions of, the Organic Act
constitutionally-essential to the creation of
autonomous regions i.e., those aspects
specifically mentioned in the Constitution which
Congress must provide for in the Organic Act
require ratification through a plebiscite. We
stand by this interpretation.
22. For if we were to go by the petitioners
interpretation of Section 18, Article X of the
Constitution that all amendments to the
Organic Act have to undergo the plebiscite
requirement before becoming effective, this
would lead to impractical and illogical results
hampering the ARMMs progress by impeding
Congress from enacting laws that timely
address problems as they arise in the region, as
well as weighing down the ARMM government
with the costs that unavoidably follow the
holding of a plebiscite.
23. It is posited that that Sec 3 of RA No.
10153, in giving the President the power to
appoint OICs to take the place of the elective
officials of the ARMM, creates a fundamental
change in the basic structure of the
government, and thus requires compliance with
57
the plebiscite requirement embodied in RA No.
9054. The court disagrees. The said provision
clearly preserves the basic structure of the
ARMM regional government when it recognizes
the offices of the ARMM regional government
and directs the OICs who shall temporarily
assume these offices to perform the functions
pertaining to the said offices.
Congress has no authority to extend the
three-year term limit by inserting a
holdover provision in RA No. 9054
24. Petitioners are one in defending the
constitutionality of Section 7(1), Article VII of RA
No. 9054, which allows the regional officials to
remain in their positions in a holdover capacity.
The petitioners essentially argue that the ARMM
regional officials should be allowed to remain in
their respective positions until the May 2013
elections since there is no specific provision in
the Constitution which prohibits regional
elective officials from performing their duties in
a holdover capacity.
25. Section 8, Article X of the Constitution
provides:
Section 8. The term of office of elective local
officials, except barangay officials, which shall
be determined by law, shall be three years and
no such official shall serve for more than three
consecutive terms.
26. The clear wording of Section 8, Article X of
the Constitution expresses the intent of the
framers of the Constitution to categorically set
a limitation on the period within which all
elective local officials can occupy their offices.
27. Elective ARMM officials are also local
officials,thus, they are bound by the three-year
term limit prescribed by the Constitution.
28. It is irrelevant that the Constitution does
not expressly prohibit elective officials from
acting in a holdover capacity. Short of
amending the Constitution, Congress has no
authority to extend the three-year term limit by
inserting a holdover provision in RA No. 9054.
Thus, the term of three years for local officials
should stay at three (3) years, as fixed by the
Constitution, and cannot be extended by
holdover by Congress.
29. In the past, the court has recognized the
validity of holdover provisions in various laws.
One significant difference is that while these
past cases all refer to
elective barangay or sangguniang
kabataan officials whose terms of office are not
explicitly provided for in the Constitution, the
present case refers to local elective officials -
the ARMM Governor, the ARMM Vice Governor,
and the members of the Regional Legislative
Assembly - whose terms fall within the three-
year term limit set by Section 8, Article X of the
Constitution.
30. Even assuming that a holdover is
constitutionally permissible, and there had
been statutory basis for it, the rule of holdover
can only apply as an available option where no
express or implied legislative intent to the
contrary exists; it cannot apply where such
contrary intent is evident.
31. Congress, in passing RA No. 10153 in the
exercise of its plenary legislative powers, has
clearly acted within its discretion when it
deleted the holdover option under RA 9054.
COMELEC has no authority to hold special
elections
32. The Constitution has merely empowered
the COMELEC to enforce and administer all laws
and regulations relative to the conduct of an
election. Although the legislature, under the
Omnibus Election Code (Batas Pambansa Bilang
(BP) 881), has granted the COMELEC the power
to postpone elections to another date, this
power is confined to the specific terms and
circumstances provided for in the law.
Specifically, both Section 5 and Section 6 of BP
881 address instances where elections have
already been scheduled to take place but do
not occur or had to be suspended because of
unexpected and unforeseen circumstances,
such as violence, fraud, terrorism, and other
analogous circumstances.
33. In contrast, the ARMM elections
were postponed by law, in furtherance of the
constitutional mandate of synchronization of
national and local elections. Obviously, this
does not fall under any of the circumstances
58
contemplated by Section 5 or Section 6 of BP appointments the President can make are
881. enumerated in a singlesentence, the 1987
Constitution enumerates the various
34. More importantly, RA No. 10153 has appointments the President is empowered to
already fixed the date for the next ARMM make and divides the enumeration
elections and the COMELEC has no authority to in two sentences. The change in style is
set a different election date. significant; in providing for this change, the
framers of the 1987 Constitution clearly sought
35. Even assuming that the COMELEC has the to make a distinction between the first group of
authority to hold special elections, and this presidential appointments and the second
Court can compel the COMELEC to do so, there group of presidential appointments.
is still the problem of having to shorten the
terms of the newly elected officials in order to 39. The first group of presidential
synchronize the ARMM elections with the May appointments: the heads of the executive
2013 national and local elections. Obviously, departments, ambassadors, other public
neither the Court nor the COMELEC has the ministers and consuls, or officers of the Armed
authority to do this, amounting as it does to an Forces, and other officers whose appointments
amendment of Section 8, Article X of the are vested in the President by the Constitution,
Constitution, which limits the term of local pertains to the appointive officials who have to
officials to three years. be confirmed by the Commission on
Appointments.
Presidents power to appoint OICs under
RA 10153 covers both appointive and 40. The second group of officials the President
elective positions in the ARMM can appoint are all other officers of the
Government whose appointments are not
36. It is argued that the Presidents power to otherwise provided for by law, and those whom
appoint pertains only to appointive positions he may be authorized by law to appoint. The
and cannot extend to positions held by elective second sentence acts as the catch-all
officials. provision for the Presidents appointment
power, in recognition of the fact that the power
37. The power to appoint has traditionally been to appoint is essentially executive in nature. In
recognized as executive in nature. Section 16, other words, where there are offices which have
Article VII of the Constitution describes in broad to be filled, but the law does not provide the
strokes the extent of this power, thus: process for filling them, the Constitution
recognizes the power of the President to fill the
Section 16. The President shall nominate office by appointment.
and, with the consent of the Commission on
Appointments, appoint the heads of the 41. Any limitation on or qualification to the
executive departments, ambassadors, other exercise of the Presidents appointment power
public ministers and consuls, or officers of the should be strictly construed and must be clearly
armed forces from the rank of colonel or naval stated in order to be recognized. Given that
captain, and other officers whose appointments the President derives his power to appoint OICs
are vested in him in this Constitution. He shall in the ARMM regional government from law, it
also appoint all other officers of the falls under the classification of
Government whose appointments are not presidentialappointments covered by the
otherwise provided for by law, and those whom second sentence of Section 16, Article VII of the
he may be authorized by law to appoint. The Constitution. The Presidents appointment
Congress may, by law, vest the appointment of power thus rests on clear constitutional basis.
other officers lower in rank in the President
alone, in the courts, or in the heads of Power to appoint OICs is not incompatible
departments, agencies, commissions, or with the Presidents power of supervision
boards. over local governments and autonomous
regions
38. While in the 1935 Constitution, the various
59

42. There is no incompatibility between the
Presidents power of supervision over local
governments and autonomous regions, and the
power granted to the President to appoint OICs.
43. The power of supervision is defined as the
power of a superior officer to see to it that
lower officers perform their functions in
accordance with law. This is distinguished from
the power of control or the power of an officer
to alter or modify or set aside what a
subordinate officer had done in the
performance of his duties and to substitute the
judgment of the former for the latter.
44. The petitioners apprehension regarding
the Presidents alleged power of control over
the OICs is rooted in their belief that the
Presidents appointment power includes the
power to remove these officials at will.
However, Section 3 of RA No. 10153 clearly
provides that once the President has appointed
the OICs for the offices of the Governor, Vice
Governor and members of the Regional
Legislative Assembly, these same officials will
remain in office until they are replaced by the
duly elected officials in the May 2013 elections.
Nothing in this provision even hints that the
President has the power to recall the
appointments he already made.
RA No. 10153 is an interim measure
45. Congress enacted RA No. 10153 primarily
to heed the constitutional mandate to
synchronize the ARMM regional elections with
the national and local elections. To do this,
Congress had to postpone the scheduled ARMM
elections for another date, leaving it with the
problem of how to provide the ARMM with
governance in the intervening period, between
the expiration of the term of those elected in
August 2008 and the assumption to office 21
months away of those who will win in the
synchronized elections on May 13, 2013.
46. In this way, RA No. 10153 is in reality an
interim measure, enacted to respond to the
adjustment that synchronization requires. Given
the context, we have to judge RA No. 10153 by
the standard of reasonableness in responding
to the challenges brought about by
synchronizing the ARMM elections with the
national and local elections. In other words,
given the plain unconstitutionality of providing
for a holdover and the unavailability of
constitutional possibilities for lengthening or
shortening the term of the elected ARMM
officials, is the choice of the Presidents power
to appoint for a fixed and specific period as an
interim measure, and as allowed under Section
16, Article VII of the Constitution an
unconstitutional or unreasonable choice for
Congress to make?
47. The grant to the President of the power to
appoint OICs in place of the elective members
of the Regional Legislative Assembly is neither
novel nor innovative. The power granted to the
President, via RA No. 10153, to appoint
members of the Regional Legislative Assembly
is comparable to the power granted by BP 881
(the Omnibus Election Code) to the President to
fill any vacancy for any cause in the Regional
Legislative Assembly (then called
the Sangguniang Pampook)
48. While synchronization will temporarily
disrupt the election process in a local
community, however, the adoption of this
measure is a matter of necessity in order to
comply with a mandate that the Constitution
itself has set out.
Executive is not bound by the principle of
judicial courtesy
49. Several petitioners question the propriety
of the appointment by the President of Mujiv
Hataman as acting Governor and Bainon Karon
as acting Vice Governor of the ARMM. They
argue that since our previous decision was
based on a close vote of 8-7, and given the
numerous motions for reconsideration filed by
the parties, the President, in recognition of the
principle of judicial courtesy, should have
refrained from implementing our decision until
we have ruled with finality on this case.
50. Firstly, the principle of judicial courtesy is
based on the hierarchy of courts and applies
only to lower courts in instances where, even if
there is no writ of preliminary injunction or TRO
issued by a higher court, it would be proper for
a lower court to suspend its proceedings for
practical and ethical considerations. In other
words, the principle of judicial courtesy
60
applies where there is a strong probability that
the issues before the higher court would be
rendered moot and moribund as a result of the
continuation of the proceedings in the lower
court or court of origin. Consequently,
this principle cannot be applied to the
President, who represents a co-equal branch of
government. To suggest otherwise would be to
disregard the principle of separation of powers,
on which our whole system of government is
founded upon.
51. Secondly, the fact that our previous
decision was based on a slim vote of 8-7 does
not, and cannot, have the effect of making our
ruling any less effective or binding. Regardless
of how close the voting is, so long as there is
concurrence of the majority of the members of
the en banc who actually took part in the
deliberations of the case, a decision garnering
only 8 votes out of 15 members is still a
decision of the Supreme Court en banc and
must be respected as such. The petitioners are,
therefore, not in any position to speculate that,
based on the voting, the probability exists that
their motion for reconsideration may be
granted.
52. We agree with the petitioner that the lifting
of a TRO can be included as a subject of a
motion for reconsideration filed to assail our
decision. It does not follow, however, that the
TRO remains effective until after we have
issued a final and executory decision. Unlike
in Tolentino v. Secretary of Finance cited by
petitioners, in the present case, we expressly
lifted the TRO issued on September 13, 2011.
There is, therefore, no legal impediment to
prevent the President from exercising his
authority to appoint an acting ARMM Governor
and Vice Governor as specifically provided for in
RA No. 10153.
14. Case Summary
Pimentel vs. Ermita (2005)
G.R. No. 164978 | 2005-10-13
Subject: Courts will decide a question, even if
rendered moot, if it is capable of repetition yet
evading review; Power to appoint is essentially
executive in nature; Lack of standing of
petitioners as members of Congress;
Appointment of department secretaries in an
acting capacity; Acting appointments cannot
exceed one year; Ad-interim appointments vs.
Appointments in an acting capacity
Facts:
The Senate and the House of Representatives
("Congress") commenced their regular session
on July 26, 2004. The Commission on
Appointments, composed of Senators and
Representatives, was constituted on August 25,
2004.
Meanwhile, President Arroyo, through Executive
Secretary Eduardo R. Ermita (Secretary Ermita),
issued appointments to respondents
as acting secretaries of their respective
departments. Respondents took their oath of
office and assumed duties as acting secretaries.
On September 8, 2004, Senator Aquilino Q.
Pimentel, Jr., together with other senators, filed
the present petition for certiorari and
prohibition to declare unconstitutional the
appointments issued by President Arroyo to
respondents as acting secretaries of their
respective departments.
Congress adjourned on September 22, 2004.
On September 23, 2004, President Arroyo
issued ad interim appointments to respondents
as secretaries of the departments to which they
were previously appointed in an acting capacity.
The petition questions the constitutionality of
President Arroyo's appointment of respondents
as acting secretaries without the consent of the
Commission on Appointments (CoA) while
Congress is in session.
Held:
Courts will decide a question, even if
rendered moot, if it is capable of
repetition yet evading review
1. The Solicitor General argues that the
petition is moot because President Arroyo had
extended to respondentsad
interim appointments on 23 September 2004
immediately after the recess of Congress.
2. As a rule, the writ of prohibition will not lie to
enjoin acts already done. However, as an
exception to the rule on mootness, courts will
decide a question otherwise moot if it is
61
capable of repetition yet evading review. In the
present case, the mootness of the petition does
not bar its resolution. The question of the
constitutionality of the President's appointment
of department secretaries in an acting capacity
while Congress is in session will arise in every
such appointment.
Power to appoint is essentially executive
in nature
3. The power to appoint is essentially
executive in nature, and the legislature may not
interfere with the exercise of this executive
power except in those instances when the
Constitution expressly allows it to
interfere. Limitations on the executive power to
appoint are construed strictly against the
legislature. The scope of the legislature's
interference in the executive's power to appoint
is limited to the power to prescribe the
qualifications to an appointive office. Congress
cannot appoint a person to an office in the
guise of prescribing qualifications to that office.
Neither may Congress impose on the President
the duty to appoint any particular person to an
office.
4. Even if the Commission on Appointments is
composed of members of Congress, the
exercise of its powers is executive and not
legislative. The Commission on Appointments
does not legislate when it exercises its power to
give or withhold consent to presidential
appointments. The Commission on
Appointments is a creature of the Constitution.
Although its membership is confined to
members of Congress, said Commission is
independent of Congress. The powers of the
Commission do not come from Congress, but
emanate directly from the Constitution. Hence,
it is not an agent of Congress. In fact,
the functions of the Commissioner are purely
executive in nature.
Lack of standing of petitioners as
members of Congress
5. Considering the independence of the
Commission on Appointments from Congress, it
is error for petitioners to claim standing in the
present case as members of
Congress. President Arroyo's issuance of acting
appointments while Congress is in session
impairs no power of Congress.
6. Among the petitioners, only the following
are members of the Commission on
Appointments of the 13th Congress: Senator
Enrile as Minority Floor Leader, Senator Lacson
as Assistant Minority Floor Leader, and Senator
Angara, Senator Ejercito-Estrada, and Senator
Osmea as members. Thus, on the impairment
of the prerogatives of members of the
Commission on Appointments, only Senators
Enrile, Lacson, Angara, Ejercito-Estrada, and
Osmea have standing in the present petition.
This is in contrast to Senators Pimentel,
Estrada, Lim, and Madrigal, who, though
vigilant in protecting their perceived
prerogatives as members of Congress, possess
no standing in the present petition.
Appointment of department secretaries in
an acting capacity
7. The essence of an appointment in an acting
capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited
time until the appointment of a permanent
occupant to the office. In case of vacancy in an
office occupied by an alter ego of the President,
such as the office of a department secretary,
the President must necessarily appoint an alter
ego of her choice as acting secretary before the
permanent appointee of her choice could
assume office.
8. Congress, through a law, cannot impose on
the President the obligation to appoint
automatically the undersecretary as her
temporary alter ego. An alter ego, whether
temporary or permanent, holds a position of
great trust and confidence. Congress, in the
guise of prescribing qualifications to an office,
cannot impose on the President who her alter
ego should be.
9. The office of a department secretary may
become vacant while Congress is in
session. Since a department secretary is
the alter ego of the
President, the acting appointee to the office
must necessarily have the President's
confidence. Thus, by the very nature of the
office of a department secretary, the President
must appoint in an acting capacity a person of
62
her choice even while Congress is in
session. That person may or may not be the
permanent appointee, but practical reasons
may make it expedient that the acting
appointee will also be the permanent
appointee.
10. The law expressly allows the President to
make such acting appointment. Section 17,
Chapter 5, Title I, Book III of EO 292 states that
"[t]he President may temporarily designate an
officer already in the government service
or any other competent person to perform the
functions of an office in the executive branch."
Thus, the President may even appoint in an
acting capacity a person not yet in the
government service, as long as the President
deems that person competent.
11. Petitioners assert that Section 17 does not
apply to appointments vested in the President
by the Constitution, because it only applies to
appointments vested in the President by law.
Petitioners forget that Congress is not the only
source of law. "Law" refers to the Constitution,
statutes or acts of Congress, municipal
ordinances, implementing rules issued pursuant
to law, and judicial decisions.
Acting appointments cannot exceed one
year
12. Petitioners claim that the issuance of
appointments in an acting capacity is
susceptible to abuse. Petitioners fail to consider
that acting appointments cannot exceed one
year as expressly provided in Section 17(3),
Chapter 5, Title I, Book III of EO 292. The law
has incorporated this safeguard to prevent
abuses, like the use of acting appointments as
a way to circumvent confirmation by the
Commission on Appointments.
Ad-interim appointments vs.
Appointments in an acting capacity
13. Ad-interim appointments must be
distinguished from appointments in an acting
capacity. Both of them are effective upon
acceptance. But ad-interim appointments are
extended only during a recess of Congress,
whereas acting appointments may be extended
any time there is a vacancy.
14. Moreover ad-interim appointments are
submitted to the Commission on Appointments
for confirmation or
rejection. Acting appointments are not
submitted to the Commission on
Appointments. Acting appointments are a way
of temporarily filling important offices but, if
abused, they can also be a way of
circumventing the need for confirmation by the
Commission on Appointments
15. Case Summary
Macalintal vs Comelec (2003)
G.R. No. 157013 | 2003-07-10
Subject: Standing as Taxpayer; Issue is of
transcendental importance; Ripe for
adjudication; Not a political question; Laws are
presumed to be constitutional; Constitutional
construction-Constitution should be construed
as a whole; Section 5(d) of RA 9189 is cons;
titutional Section 2, Art V (absentee voting)
is an exception to Section 1, Art V (residency
requirement for voters) of the 1987
Constitution; Affidavit requirement for Filipino
abroad under Sec 5(d) of RA 9189 is merely to
overcome the presumption of abandonment of
their Philippine domicile Absentee Voting, being
an exception to the regular form of voting, is
purely a statutory privilege; In election
laws, residence is considered synonymous
with domicile; Section 18.5 of RA 9189 is
unconstitutional insofar as it enables the
Comelec to usurp the duty of Congress to
proclaim the winning candidates, for president
and vice-president; Sections 19 and 25 of RA
9189 are unconstitutional --Congress may not
intrude into the independence of the COMELEC
by exercising supervisory powers over its rule-
making authority
Facts:
Atty. Romulo Macalintal filed a petition, as a
taxpayer and as a lawyer, seeking a declaration
that certain provisions of Republic Act No. 9189
(The Overseas Absentee Voting Act of 2003)1
suffer from constitutional infirmity.
The petition raises three principal questions:
A. Does Section 5(d) of Rep. Act No.
9189 allowing the registration of voters who are
immigrants or permanent residents in other
63
countries by their mere act of executing an
affidavit expressing their intention to return to
the Philippines, violate the residency
requirement in Section 1 of Article V of the
Constitution?
B. Does Section 18.5 of the same
law empowering the COMELEC to proclaim the
winning candidates for national offices and
party list representatives including the
President and the Vice-President violate the
constitutional mandate under Section 4, Article
VII of the Constitution that the winning
candidates for President and the Vice-President
shall be proclaimed as winners by Congress?
C. May Congress, through the Joint
Congressional Oversight Committee created in
Section 25 of Rep. Act No. 9189, exercise
the power to review, revise, amend, and
approve the Implementing Rules and
Regulations that the COMELEC shall promulgate
without violating the independence of the
COMELEC under Section 1, Article IX-A of the
Constitution?
Among the objections raised to the petition,
and to the propriety of the court in taking
cognizance of the case, were (1) lack of
standing of petitioner to file the case; (2) filing
of petition was premature, and thus, no actual
controversy is presented; (3) issue involves a
political question;
Held:
I. Procedural Issues
Standing as Taxpayer
1. Taxpayers, such as herein petitioner, have
the right to restrain officials from wasting public
funds through the enforcement of an
unconstitutional statute. The Court has held
that they may assail the validity of a law
appropriating public funds because expenditure
of public funds by an officer of the State for the
purpose of executing an unconstitutional act
constitutes a misapplication of such funds.
2. Section 29 of R.A. No. 9189 appropriates
funds insofar as it provides that a supplemental
budget on the General Appropriations Act of the
year of its enactment into law shall provide for
the necessary amount to carry out its
provisions.
Issue is of transcendental importance
3. The Court has adopted the policy of taking
jurisdiction over cases whenever the petitioner
has seriously and convincingly presented an
issue of transcendental significance to the
Filipino people. Objections to taxpayers suit for
lack of sufficient personality standing, or
interest are, in the main, procedural matters.
Considering the importance to the public of the
case at bar, and in keeping with the Courts
duty, under the 1987 Constitution, to determine
whether or not the other branches of
government have kept themselves within the
limits of the Constitution and the laws and that
they have not abused the discretion given to
them, the Court has brushed aside
technicalities of procedure and has taken
cognizance of these petitions.
4. In this case, the Court may set aside
procedural rules as the constitutional right of
suffrage of a considerable number of Filipinos is
involved.
5. The need to consider the constitutional
issues raised before the Court is further
buttressed by the fact that it is now more than
fifteen years since the ratification of the 1987
Constitution requiring Congress to provide a
system for absentee voting by qualified
Filipinos abroad. Thus, strong reasons of public
policy demand that the Court resolves the
instant petition10 and determine whether
Congress has acted within the limits of the
Constitution or if it had gravely abused the
discretion entrusted to it.
Ripe for adjudication
6. There is a question on the prematurity of the
petition as there are no ongoing proceedings in
any tribunal, board or before a government
official exercising judicial, quasi-judicial or
ministerial functions as required by Rule 65 of
the Rules of Court.
7. It it is illogical to await the adverse
consequences of the law in order to consider
the controversy actual and ripe for judicial
64
resolution. (see Separate Opinion of Kapunan, J.
in Cruz vs. DENR Secretary)
Not a political question
8. In seeking to nullify an act of the Philippine
Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the
legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to
settle the dispute. The question thus posed is
judicial rather than political. The duty (to
adjudicate) remains to assure that the
supremacy of the Constitution is upheld. Once a
"controversy as to the application or
interpretation of constitutional provision is
raised before this Court (as in the instant case),
it becomes a legal issue which the Court is
bound by constitutional mandate to decide.
(Taada vs. Angara)
B. Substantive Issues
Laws are presumed to be constitutional
9. An act of the legislature, approved by the
executive, is presumed to be within
constitutional limitations. The responsibility of
upholding the Constitution rests not on the
courts alone but on the legislature as well. The
question of the validity of every statute is first
determined by the legislative department of the
government itself.(see Peralta vs Comelec)
10. To declare a law unconstitutional, the
repugnancy of that law to the Constitution must
be clear and unequivocal, for even if a law is
aimed at the attainment of some public good,
no infringement of constitutional rights is
allowed. To strike down a law there must be a
clear showing that what the fundamental law
condemns or prohibits, the statute allows it to
be done.
Constitutional construction-Constitution
should be construed as a whole
11. As the essence of R.A. No. 9189 is to
enfranchise overseas qualified Filipinos, it
behooves the Court to take a holistic view of
the pertinent provisions of both the Constitution
and R.A. No. 9189. It is a basic rule in
constitutional construction that the Constitution
should be construed as a whole.
12. A constitutional provision should function
to the full extent of its substance and its terms,
not by itself alone, but in conjunction with all
other provisions of that great document. (see
Chiongbian vs. De Leon)
13. Constitutional provisions are mandatory in
character unless, either by express statement
or by necessary implication, a different
intention is manifest. (see Marcelino vs. Cruz)
14. The intent of the Constitution may be
drawn primarily from the language of the
document itself. Should it be ambiguous, the
Court may consider the intent of its framers
through their debates in the constitutional
convention. (Luz Farms vs. Secretary of the
Department of Agrarian Reform)
Section 5(d) of RA 9189 is constitutional
Section 2, Art V (absentee voting) is an
exception to theresidency requirement for
voters under Section 1, Art V of the 1987
Constitution
15. Under Section 5(d) of RA 9189, one of
those disqualified from voting is an immigrant
or permanent resident who is recognized as
such in the host country unless he/she
executes an affidavit declaring that he/she
shall resume actual physical permanent
residence in the Philippines not later than three
years from approval of his/her registration
under said Act.
16. Petitioner posits that Section 5(d) is
unconstitutional because it violates Section
1, Article V of the 1987 Constitution which
requires that the voter must be a resident in
the Philippines for at least one year and in the
place where he proposes to vote for at least six
months immediately preceding an election.
Petitioner questions the rightness of the mere
act of execution of an affidavit to qualify the
Filipinos abroad who are immigrants or
permanent residents, to vote.
17. However, while Section 5(d) of RA 9189
appears to violate Section 1 of Article V of the
Constitution, petitioner has ignored Section 2,
Article V which provides:
65

SEC. 2. The Congress shall provide a system for
securing the secrecy and sanctity of the ballot
as well asasystem for absentee
voting by qualified Filipinos abroad.
18. Contrary to petitioners claim that Section
5(d) circumvents the Constitution, Congress
enacted the law prescribing a system of
overseas absentee voting in compliance with
the constitutional mandate. Such mandate
expressly requires that Congress provide a
system of absentee voting that necessarily
presupposes that the "qualified citizen of the
Philippines abroad" is not physically present in
the country.
19. The Constitutional Commission realized
that under the laws then existing and
considering the novelty of the system of
absentee voting in this jurisdiction, vesting
overseas Filipinos with the right to vote would
spawn constitutional problems especially
because the Constitution itself provides for the
residency requirement of voters. Thus, Section
2, Article V of the Constitution came into being
to remove any doubt as to the inapplicability of
the residency requirement in Section 1. It is
precisely to avoid any problems that could
impede the implementation of its pursuit to
enfranchise the largest number of qualified
Filipinos who are not in the Philippines that the
Constitutional Commission explicitly mandated
Congress to provide a system for overseas
absentee voting.
20. The intent of the Constitutional
Commission is to entrust to Congress the
responsibility of devising a system of absentee
voting. The qualifications of voters as stated in
Section 1 shall remain except for the residency
requirement. This is in fact the reason why the
Constitutional Commission opted for the
term qualified Filipinos abroad with respect
to the system of absentee voting that Congress
should draw up. As stressed by Commissioner
Monsod, by the use of the
adjective qualified with respect to Filipinos
abroad, the assumption is that they have the
"qualifications and none of the disqualifications
to vote."
21. It is in pursuance of that intention that the
Commission provided for Section 2 immediately
after the residency requirement of Section 1. By
the doctrine of necessary implication in
statutory construction, which may be applied in
construing constitutional provisions,the
strategic location of Section 2 indicates
that the Constitutional Commission
provided for an exception to the actual
residency requirement of Section 1 with
respect to qualified Filipinos abroad. The
same Commission has in effect declared
that qualified Filipinos who are not in the
Philippines may be allowed to vote even though
they do not satisfy the residency requirement in
Section 1, Article V of the Constitution.
22. Accordingly, Section 4 of RA 9189, which
provides for the coverage of the absentee
voting process, does not require physical
residency in the Philippines.
Affidavit requirement for Filipino abroad
under Sec 5(d) of RA 9189 is merely to
overcome the presumption of
abandonment of their Philippine domicile
23. Section 5(d) of RA 9189 specifically
disqualifies an immigrant or permanent
resident who is "recognized as such in the host
country" because immigration or permanent
residence in another country implies
renunciation of ones residence in his country of
origin. However, same Section allows an
immigrant and permanent resident abroad to
register as voter for as long as he/she executes
an affidavit to show that he/she has not
abandoned his domicile.
24. Contrary to the claim of petitioner, the
execution of the affidavit itself is not the
enabling or enfranchising act. The affidavit
required in Section 5(d) is not only proof of the
intention of the immigrant or permanent
resident to go back and resume residency in
the Philippines, but more significantly, it serves
as an explicit expression that he had not in fact
abandoned his domicile of origin. Thus, it is not
correct to say that the execution of the affidavit
under Section 5(d) violates the Constitution
that proscribes "provisional registration or a
promise by a voter to perform a condition to be
qualified to vote in a political exercise."
25. To repeat, the affidavit is required of
immigrants and permanent residents abroad
66
because by their status in their host countries,
they are presumed to have relinquished their
intent to return to this country; thus, without
the affidavit, the presumption of abandonment
of Philippine domicile shall remain.
26. It must be emphasized that Section 5(d)
does not only require an affidavit or a promise
to "resume actual physical permanent
residence in the Philippines not later than three
years from approval of his/her registration," the
Filipinos abroad must also declare that they
have not applied for citizenship in another
country. Thus, they must return to the
Philippines; otherwise, their failure to return
"shall be cause for the removal" of their names
"from the National Registry of Absentee Voters
and his/her permanent disqualification to vote
in absentia."
27. Indeed, the probability that after an
immigrant has exercised the right to vote, he
shall opt to remain in his host country beyond
the third year from the execution of the
affidavit, is not farfetched. However, it is not for
this Court to determine the wisdom of a
legislative exercise. As expressed in Taada vs.
Tuvera, the Court is not called upon to rule on
the wisdom of the law or to repeal it or modify
it if we find it impractical.
28. The provisions of Sections 5(d) and 11 are
components of the system of overseas
absentee voting established by R.A. No. 9189.
The qualified Filipino abroad who executed the
affidavit is deemed to have retained his
domicile in the Philippines. He is presumed not
to have lost his domicile by his physical
absence from this country. His having become
an immigrant or permanent resident of his host
country does not necessarily imply an
abandonment of his intention to return to his
domicile of origin, the Philippines. Therefore,
under the law, he must be given the
opportunity to express that he has not actually
abandoned his domicile in the Philippines by
executing the affidavit required by Sections
5(d) and 8(c) of the law.
Absentee Voting, being an exception to
the regular form of voting, is purely a
statutory privilege
29. The method of absentee voting has been
said to be completely separable and distinct
from the regular system of voting, and to be a
new and different manner of voting from that
previously known, and an exception to the
customary and usual manner of voting. The
right of absentee and disabled voters to cast
their ballots at an election is purely
statutory; absentee voting was unknown to,
and not recognized at, the common law. xxx
Such statutes are regarded as conferring a
privilege and not a right, or an absolute
right. (citing 29 C.J.S. 575-577)
30. When the legislature chooses to grant the
right by statute, it must operate with equality
among all the class to which it is granted; but
statutes of this nature may be limited in their
application to particular types of elections. xxx
they should also be construed in the light of the
circumstances under which they were enacted.
Further, in passing on statutes regulating
absentee voting, the court should look to the
whole and every part of the election laws, the
intent of the entire plan, and reasons and spirit
of their adoption, and try to give effect to every
portion thereof. (citing 29 C.J.S. 575-577)
In election laws, residence is considered
synonymous with domicile
31. Ordinarily, an absentee is not a resident
and vice versa; a person cannot be at the same
time, both a resident and an absentee.
However, under our election laws and the
countless pronouncements of the Court
pertaining to elections, an absentee remains
attached to his residence in the Philippines
as residence is considered synonymous
with domicile.
32. Article 50 of the Civil Code decrees that
"[f]or the exercise of civil rights and the
fulfillment of civil obligations, the domicile of
natural persons is their place of habitual
residence." In Ong vs. Republic, this court took
the concept of domicile to mean an individuals
"permanent home," "a place to which,
whenever absent for business or for pleasure,
one intends to return, and depends on facts
and circumstances in the sense that they
disclose intent."
33. Based on the foregoing, domicile includes
the twin elements : (1) the fact of residing or
67
physical presence in a fixed place and
(2) animus manendi, or the intention of
returning there permanently.
34. Residence, in its ordinary conception,
implies the factual relationship of an individual
to a certain place. It is the physical presence of
a person in a given area, community or country.
The essential distinction between residence and
domicile in law is that residence involves the
intent to leave when the purpose for which the
resident has taken up his abode ends. One may
seek a place for purposes such as pleasure,
business, or health. If a persons intent be to
remain, it becomes his domicile; if his intent is
to leave as soon as his purpose is established it
is residence. It is thus, quite perfectly normal
for an individual to have different residences in
various places. However, a person can only
have a single domicile, unless, for various
reasons, he successfully abandons his domicile
in favor of another domicile of choice.
35. There is a difference between domicile and
residence. Residence is used to indicate a
place of abode, whether permanent or
temporary; domicile denotes a fixed
permanent residence to which, when absent,
one has the intention of returning. A man may
have a residence in one place and a domicile in
another. Residence is not domicile, but domicile
is residence coupled with the intention to
remain for an unlimited time. (see Uytengsu vs.
Republic)
36. The registration of a voter in a place other
than his residence of origin has not been
deemed sufficient to consider abandonment or
loss of such residence of origin.
Section 18.5 of RA 9189 is
unconstitutional insofar as it enables the
Comelec to ususrp the duty of Congress to
proclaim the winning candidates, for
president and vice-president.
37. Section 4 of RA 9189 provides that the
overseas absentee voter may vote for
president, vice-president, senators and party-
list representatives. Section 18.5 of the same
law empowers the COMELEC to order the
proclamation of winning candidates, including
that for president and vice-president.
38. Section 18.5 of R.A. No. 9189 appears to be
repugnant to Section 4, Article VII of the
Constitution only insofar as Sec 18.5 totally
disregarded the authority given to Congress by
the Constitution to proclaim the winning
candidates for the positions of president and
vice-president.
39. Section 18.5 of RA 9189 is far too sweeping
that it necessarily includes the proclamation of
the winning candidates for the presidency and
the vice-presidency. It clashes with paragraph
4, Section 4, Article VII of the Constitution
which provides that the returns of every
election for President and Vice-President shall
be certified by the board of canvassers to
Congress.
40. The provisions of the Constitution as the
fundamental law of the land should be read as
part of The Overseas Absentee Voting Act of
2003 and hence, the canvassing of the votes
and the proclamation of the winning candidates
for president and vice-president for the entire
nation must remain in the hands of Congress.
Sections 19 and 25 of RA 9189 are
unconstitutional --Congress may not
intrude into the independence of the
COMELEC by exercising supervisory
powers over its rule-making authority.
41. Petitioner avers that Sections 19 and 25 of
R.A. No. 9189 violate Section 1, Article IX-A of
the Constitution which provides that
Constitutional Commissions shall
be independent . Particularly, the creation of
the Joint Congressional Oversight Committee
with the power to review, revise, amend and
approve the Implementing Rules and
Regulations promulgated by the COMELEC
intrudes into the independence of the COMELEC
which, as a constitutional body, is not under the
control of either the executive or legislative
departments of government; and that should
the rules promulgated by the COMELEC violate
any law, it is the Court that has the power to
review the same via the petition of any
interested party, including the legislators.
42. Section 25 of RA 9189 provides for the
creation of the Joint Congressional Oversight
Committee (JCOC). Composed of Senators and
68
Members of the House of Representatives, the
JCOC is a purely legislative body. However,
aside from its monitoring and evaluation
functions, RA 9189 gives to the JCOC the
following functions: (a) to "review, revise,
amend and approve the Implementing Rules
and Regulations" (IRR) promulgated by the
COMELEC [Sections 25 and 19]; and (b) subject
to the approval of the JCOC [Section 17.1], the
voting by mail in not more than three countries
for the May 2004 elections and in any country
determined by COMELEC.
43. Once a law is enacted and approved, the
legislative function is deemed accomplished
and complete. The legislative function may
spring back to Congress relative to the same
law only if that body deems it proper to review,
amend and revise the law, but certainly not to
approve, review, revise and amend the IRR of
the COMELEC.
44. By vesting itself with the powers to
approve, review, amend, and revise the IRR
for The Overseas Absentee Voting Act of 2003,
Congress went beyond the scope of its
constitutional authority. Congress trampled
upon the constitutional mandate of
independence of the COMELEC. Hence, the
second sentence of the first paragraph of
Section 19 stating that "[t]he Implementing
Rules and Regulations shall be submitted to the
Joint Congressional Oversight Committee
created by virtue of this Act for prior approval,"
and the second sentence of the second
paragraph of Section 25 stating that "[i]t shall
review, revise, amend and approve the
Implementing Rules and Regulations
promulgated by the Commission," should be
stricken out of the statute for constitutional
infirmity.
45. Similarly, the phrase, "subject to the
approval of the Congressional Oversight
Committee" in the first sentence of Section
17.1 which empowers the Commission to
authorize voting by mail in not more than three
countries for the May, 2004 elections; and the
phrase, "only upon review and approval of the
Joint Congressional Oversight Committee"
found in the second paragraph of the same
section are unconstitutional as they require
review and approval of voting by mail in any
country after the 2004 elections. Congress may
not confer upon itself the authority to approve
or disapprove the countries wherein voting by
mail shall be allowed, as determined by the
COMELEC pursuant to the conditions provided
for in Section 17.1 of RA 9189. Otherwise,
Congress would overstep the bounds of its
constitutional mandate and intrude into the
independence of the COMELEC.
In summary:
A. Section 5(d) is CONSTITUTIONAL
B. Section 18.5 of R.A. No. 9189 is
CONSTITUTIONAL with respect only to the
authority given to the COMELEC to proclaim the
winning candidates for the Senators and party-
list representatives but UNCONSTITUTIONAL
with respect to the power to canvass the votes
and proclaim the winning candidates for
President and Vice-President which is lodged
with Congress under Section 4, Article VII of the
Constitution.
C. The following portions of R.A. No. 9189 are
declared VOID and UNCONSTITUTIONAL for
being repugnant to Section 1, Article IX-A of the
Constitution mandating the independence of
constitutional commission, such as COMELEC:
a) The phrase in the first sentence of the first
paragraph of Section 17.1, to wit: "subject to
the approval of the Joint Congressional
Oversight Committee;"
b) The portion of the last paragraph of Section
17.1, to wit: "only upon review and approval of
the Joint Congressional Oversight Committee;"
c) The second sentence of the first paragraph of
Section 19, to wit: "The Implementing Rules
and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by
virtue of this Act for prior approval;" and
d) The second sentence in the second
paragraph of Section 25, to wit: "It shall review,
revise, amend and approve the Implementing
Rules and Regulations promulgated by the
Commission" of the same law;
16. Case Summary
Matibag v. Benipayo (2002)
G.R. No. 149036 | 2002-04-02
69
 alter its permanent character. The Constitution
Subject: itself makes such ad interim appointment
permanent by making it effective until
Ad interim appointment, Commission on disapproved by the COA or until the next
Elections, Commission on Appointments adjournment of Congress.

3. This is in contrast with temporary or acting

Facts: appointments which are revocable at the
will of the appointing authority and
President Arroyo appointed, ad interim, constitutionally prohibited to ensure the
Benipayo as COMELEC Chairman, and Borra and independence of the constitutional
Tuason as COMELEC Commissioners, each for a commissions.
term of seven years and all expiring on
February 2, 2008. The President submitted 4. As such, the ad interim appointments of
thead interim appointments to the Commission Benipayo, Borra and Tuason are valid and do
on Appointments for confirmation; however, the not constitute temporary or acting
latter did not act on the appointments. appointments prohibited by the Constitution.
Subsequently, the President renewed the ad
interim appointments of Benipayo, Borra and Constitutionality of Renewals of
Tuason two more times to the same position Appointment
and the same term of seven years, with COA
still not acting on the appointments. 5. An ad interim appointment that
is disapproved by COA can no longer be
On February 2, 1999, the COMELEC en extended a new appointment. This disapproval
banc appointed Matibag as Acting Director of is a final decision of the COA in the exercise of
the EID in a temporary capacity. On April 16, its checking power on the appointing authority
2001, in his capacity as COMELEC Chairman, of the President.
Benipayo reassigned the latter to a different
department and designated a new Director for 6. An ad interim appointment that is by-
the EID. passed because of lack of time or failure of COA
to organize is another matter. The President is
This petition for Prohibition assails the ad free to renew the ad interim appointment of a
interim appointments of Benipayo, Borra and by-passed appointee.
Tuason as Chairman and Commissioners of the
COMELEC, respectively, as violative of the 7. The renewal of the ad interim appointments
constitutional prohibition on temporary of Benipayo, Borra and Tuason, in light of the
appointments. Matibag also questions the unacted nominations, do not violate the
legality of Benipayos appointment of Velma J. constitutional prohibition on reappointments.
Cinco as the new Director IV of the Comelecs Furthermore, the subsequent renewals do not
EID and her (Matibag) subsequent serve to extend their term in office but are for a
reassignment to a different department. fixed term expiring on February 2, 2008.

Held: Benipayos Authority to Reassign

Petitioner
Nature of Ad Interim Appointment
8. Pursuant to the Revised Administrative Code,
1. An ad interim appointment is a the COMELEC Chairman is vested with the
permanent appointment. It takes effect power to reassign and transfer personnel. As
immediately and can no longer be withdrawn Benipayo is the de jure COMELEC Chairman, he
by the President once the appointee has possesses full authority to exercise the powers
qualified into office. of the office as long as his ad
interim appointment remains effective.
2. The fact that ad interim appointments are
subject to confirmation by the COA does not 9. As Matibag held her Director position only
70
in an acting or temporary capacity, her
appointment can be withdrawn at will by the
appointing authority.
10. Furthermore, Matibag does not enjoy
security of tenure as she does not posses the
required qualifications for the position of
Director as prescribed by the Civil Service
Commission.
17 Case Summary
Senate v. Ermita
G.R. No. 169777 | 2006-04-20
Subject:
Judicial Review (requisites of Standing and
Actual Controversy), Executive Privilege, Inquiry
in aid of legislation (Art VI, Sec 21) vs. Question
hour (Art VI, Sec 22), Right to information,
Publication Requirement
Facts:
The Senate issued invitations to various
Executive Department officials for them to
appear as resource speakers in a public hearing
to investigate the alleged overpricing and other
unlawful provisions of the contract covering the
North Rail Project. The Senate Committee on
National Defense likewise issued invitations to
AFP officials to be resource persons in a senate
investigation hearing.
On September 28, 2005, a day before the
scheduled Senate hearing, President Arroyo
issued E.O. 464 which, pursuant thereto, took
effect immediately. EO 464, invoking executive
privilege as basis, provides that: all heads of
departments of the Executive Branch of the
government shall secure the consent of the
President prior to appearing before either
House of Congress.?
Senate President Drilon received a letter from
Executive Secretary Ermita that the invited
officials will not be able to attend without the
President?s consent, pursuant to EO 464.
Held: Sec 1 of EO 464 is valid on its face.
Sec 3 and Sec 2(b) of EO 464 are
unconstitutional.
Judicial Review, Standing
1. The Senate, including its individual
members, has a substantial and direct interest
over the outcome of the controversy and is the
proper party to assail the constitutionality of
E.O. 464. Indeed, legislators have standing to
maintain inviolate the prerogative, powers and
privileges vested by the Constitution in their
office and are allowed to sue to question the
validity of any official action which they claim
infringes their prerogatives as legislators.
2. In the same vein, party-list representatives
have standing to question the constitutionality
of E.O. 464, it being sufficient that a claim is
made that E.O. 464 infringes on their
constitutional rights and duties as members of
Congress to conduct investigation in aid of
legislation and conduct oversight functions in
the implementation of laws.
Judicial Review, Standing as Citizens
3. IBP members and other organizations claim
that EO 464 violates their constitutional right to
information as citizens.
4. It is well-settled that when suing as a
citizen, the interest of the petitioner in assailing
the constitutionality of laws, presidential
decrees, orders, and other regulations, must be
direct and personal. When the proceeding
involves the assertion of a public right, the
mere fact that he is a citizen satisfies the
requirement of personal interest.
Judicial Review, Standing based on
Transcendental Importance
5. To be accorded standing on the ground of
transcendental importance, it must establish:
(1) the case involves the disbursement of
public funds or assets, (2) the presence of a
clear case of disregard of a constitutional or
statutory prohibition by the public respondent
agency or instrumentality of the government,
and (3) the lack of any party with a more direct
and specific interest in raising the questions
being raised.
71
6. PDP-Laban's alleged interest as a political
party does not suffice to clothe it with legal
standing on the ground of transcendental
importance. No public funds or assets are
involved and other petitioners have shown
direct and specific interests in the controversy.
Its allegation that E.O. 464 hampers its
legislative agenda is only a "generalized
interest" which it shares with the rest of the
political parties. Concrete injury, whether actual
or threatened, is absent.
Judicial Review, Actual Case or
Controversy
7. That the officials merely communicated to
the Senate that they have not yet secured the
consent of the President and the President has
not actually withheld her consent or prohibited
the appearance of the officials concerned is
immaterial in determining the existence of an
actual case or controversy. For E.O. 464 does
not require either a deliberate withholding of
consent or an express prohibition issuing from
the President in order to bar officials from
appearing before Congress. The
implementation of the challenged order has
already resulted in the absence of officials
invited to the hearings of petitioner Senate of
the Philippines
Executive Privilege
8. Even where the inquiry is in aid of
legislation, there are still recognized
exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive
privilege."
9. Schwartz defines executive privilege as "the
power of the Government to withhold
information from the public, the courts, and the
Congress."
10. According to Tribe, executive privilege
come in a variety of forms:
a) state secrets privilege: invoked by U.S.
Presidents on the ground that the information is
of such nature that its disclosure would subvert
crucial military or diplomatic objectives.
b) informer's privilege, or the privilege of the
Government not to disclose the identity of
persons who furnish information of violations of
law to officers charged with the enforcement of
that law.
c) generic privilege for internal deliberations
has been said to attach to intra-governmental
documents reflecting advisory opinions,
recommendations and deliberations comprising
part of a process by which governmental
decisions and policies are formulated.
11. Executive privilege is properly invoked in
relation to specific categories of information
and not to categories of persons. Executive
officials are not exempt from the duty to
disclose information by the mere fact of being
executive officials. Executive privilege, whether
asserted against Congress, the courts, or the
public, is recognized only in relation to certain
types of information of a sensitive character. A
claim thereof may be valid or not depending on
the ground invoked to justify it and the context
in which it is made. That a type of information
is recognized as privileged does not necessarily
mean that it would be considered privileged in
all instances.
12. Neri vs. Senate: 2 types of executive
privilege: (1) presidential communication
privilege and (2) deliberative process privilege
Article VI, Sec 21 (inquiry in aid of
legislation) vs. Sec 22 (question hour)
13. While both powers allow Congress or any
of its committees to conduct inquiry, their
objectives are different.
Section 21 relates to the power to
conduct inquiries in aid of legislation. Its
aim is to elicit information that may be used
for legislation.
Section 22 pertains to the power to
conduct a question hour, the objective of
which is to obtain information in pursuit of
Congress' oversight function.
14. With regard to the use of compulsory
process, Congress can compel the appearance
of executive officials under Section 21, but NOT
under Section 22.
15. When Congress exercises its power of
inquiry, the only way for department heads to
exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the
72
mere fact that they are department heads. Only
one executive official may be exempted from
this power - the President on whom executive
power is vested, hence, beyond the reach of
Congress except through the power of
impeachment.
16. Members of the Supreme Court are also
exempt from this power of inquiry. Unlike the
Presidency, judicial power is vested in a
collegial body; hence, each member thereof is
exempt on the basis not only of separation of
powers but also on the fiscal autonomy and the
constitutional independence of the judiciary.
Validity of Sec 1, EO 464
17. Section 1 must be construed as limited in
its application to appearances of department
heads in the question hour. The requirement
then to secure presidential consent under
Section 1, limited as it is only to appearances in
the question hour, is valid on its face. For under
Section 22, the appearance of department
heads in the question hour is discretionary on
their part.
18. Section 1 cannot be applied to
appearances of department heads in inquiries
in aid of legislation. Congress is not bound in
such instances to respect the refusal of the
department head to appear in such inquiry,
unless a valid claim of privilege is subsequently
made, either by the President herself or by the
Executive Secretary.
Validity of Sec 3, EO 464
19. Section 3 of E.O. 464 requires all the
public officials enumerated in Section 2(b) to
secure the consent of the President prior to
appearing before either house of Congress. The
enumeration covers all senior officials of
executive departments, all officers of the AFP
and the PNP, and all senior national security
officials who are "covered by the executive
privilege." The enumeration also includes such
other officers as may be determined by the
President.
20. Sec. 3 actually creates an implied claim
of privilege. Underlying the requirement of
prior consent is the determination by a head of
office, authorized by the President under E.O.
464, or by the President herself, that such
official is in possession of information that is
covered by executive privilege. This
determination then becomes the basis for the
official's not showing up in the legislative
investigation until and unless the required
consent is first secured. The proviso allowing
the President to give its consent means nothing
more than that the President may reverse a
prohibition which already exists by virtue of
E.O. 464.
21. A claim of privilege must clearly state the
grounds therefor. While Section 2(a)
enumerates the types of information that are
covered by the privilege under the challenged
order, Congress is left to speculate as to which
among them is being referred to by the
executive. It does not suffice to merely declare
that the President, or an authorized head of
office, has determined that it is so, and that the
President has not overturned that
determination.
22. The privilege being, by definition, an
exemption from the obligation to disclose
information, in this case to Congress, the
necessity must be of such high degree as to
outweigh the public interest in enforcing that
obligation in a particular case. Congress
undoubtedly has a right to information from the
executive branch whenever it is sought in aid of
legislation. If the executive branch withholds
such information on the ground that it is
privileged, it must so assert it and state the
reason therefore and why it must be
respected. The infirm provisions of EO 464,
however, allow the executive branch to evade
congressional requests for information without
need of clearly asserting a right to do so and/or
proffering its reasons therefore. By the mere
expedient of invoking said provisions, the
power of Congress to conduct inquiries in aid of
legislation is frustrated.
23. In light of the highly exceptional nature of
the privilege, it is essential to limit to the
President the power to invoke the privilege. She
may of course authorize the Executive
Secretary to invoke the privilege on her behalf,
in which case the Executive Secretary must
state that the authority is "By order of the
President," which means that he personally
consulted with her. The privilege being an
73
extraordinary power, it must be wielded only by
the highest official in the executive hierarchy. In
other words, the President may not authorize
her subordinates to exercise such power. There
is even less reason to uphold such authorization
in the instant case where the authorization is
not explicit but by mere silence. Section 3, in
relation to Section 2(b), is further invalid on this
score.
Right to information
24. There are clear distinctions between the
right of Congress to information which underlies
the power of inquiry and the right of the people
to information on matters of public concern. For
one, the demand of a citizen for the production
of documents pursuant to his right to
information does not have the same obligatory
force as a subpoena duces tecum issued by
Congress. Neither does the right to information
grant a citizen the power to exact testimony
from government officials. These powers belong
only to Congress and not to an individual
citizen.
25. To the extent that investigations in aid of
legislation are generally conducted in public,
however, any executive issuance tending to
unduly limit disclosures of information in such
investigations necessarily deprives the people
of information which, being presumed to be in
aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied
access to information which they can use in
formulating their own opinions on the matter
before Congress
Publication requirement
26. While E.O. 464 applies only to officials of
the executive branch, it does not follow that the
same is exempt from the need for publication.
Based on tanada v Tuvera, the requirement of
publication of laws applies even to those that
do not directly apply to people in general.
18. Case Summary
Neri v. Senate
G.R. No. 180643 | 2008-03-25
Subject:
Executive Privilege (Presidential
Communications Privilege)
Facts:
DOTC entered into a contract with ZTE for the
supply of equipment and services for the
National Broadband Network (NBN) Project in
the amount of approximately USD 329.5M (or
P16 Billion).
The NBN Project was initially approved as a
Build-Operate-Transfer (BOT) project but NEDA
acquiesced to convert it into a government-to-
government project, to be financed through a
loan from the Chinese Government.
The NBN Project became the subject of
investigation of several senate committees.
NEDA Chair Romulo Neri was summoned to
appear and testify. He disclosed that then
COMELEC Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of
the NBN Project. He informed President Arroyo
about the bribery attempt and that she
instructed him not to accept thebribe. However,
when probed further on what they discussed
about the NBN Project, Neri refused to answer,
invoking "executive privilege". In particular, he
refused to answer the questions on (a) whether
or not President Arroyo followed up the NBN
Project, (b) whether or not she directed him to
prioritize it, and (c) whether or not she directed
him to approve after being informed of the
bribe attempt. For his refusal to answer, the
Senate cited Neri in contempt.
Held:
The communications elicited by the three (3)
questions are covered by the presidential
communications privilege.
Executive Privilege
1. There is a recognized claim of executive
privilege despite the revocation of EO 464 since
the privilege is rooted in the Constitution itself.
2. Citing In Re: Sealed Case-- there are two
kinds of executive privilege:
(a) Presidential communications
privilege, which pertains to communications,
74
documents or other materials that reflect
presidential decision-making and deliberations
and that the President believes should remain
confidential.
(b) Deliberative process privilege which
includes advisory opinions, recommendations
and deliberations comprising part of a process
by which governmental decisions and policies
are formulated.
Presidential communications privilege applies
to decision-making of the President while, the
deliberative process privilege, to decision-
making of executive officials. The first is rooted
in the constitutional principle of separation of
power and the President's unique constitutional
role; the second on common law privilege.
Unlike the deliberative process privilege, the
presidential communications privilege applies
to documents in their entirety, and covers final
and post-decisional materials as well as pre-
deliberative ones. As a consequence,
congressional or judicial negation of the
presidential communications privilege is always
subject to greater scrutiny than denial of the
deliberative process privilege.
3. The elements of presidential communications
privilege are:
(a) The protected communication must relate
to a "quintessential and non-delegable
presidential power."
(b) The communication must be authored or
"solicited and received" by a close advisor of
the President or the President himself. The
judicial test is that an advisor must be in
"operational proximity" with the President.
(c) The presidential communications privilege
remains a qualified privilege that may be
overcome by a showing of adequate need, such
that the information sought "likely contains
important evidence" and by the unavailability
of the information elsewhere by an appropriate
investigating authority.
4. The communications elicited by the three
questions are covered by the presidential
communications privilege. First, the
communications relate to a "quintessential and
non-delegable power" of the President, i.e. the
power to enter into an executive agreement
with other countries. Second, the
communications are "received" by a close
advisor of the President. Under the "operational
proximity" test, Neri can be considered a close
advisor, being a member of President Arroyo's
cabinet. And third, there is no adequate
showing of a compelling need that would justify
the limitation of the privilege and of the
unavailability of the information elsewhere by
an appropriate investigating authority.
5. Presidential communications are
presumptively privileged. However,
confidentiality in executive privilege is not
absolutely protected. The presumption can be
overcome by a showing of public need.
Executive Privilege (properly invoked)
6. For the claim to be properly invoked, there
must be a formal claim of privilege, lodged by
the head of the department which has control
over the matter. A formal and proper claim of
executive privilege requires a "precise and
certain reason" for preserving their
confidentiality.
7. The Letter of Executive Secretary Ermita
serves as the formal claim of privilege. The
reason for the claim of privilege is that the
information sought to be disclosed might impair
our diplomatic as well as economic relations
with the People's Republic of China.
Contempt order
8. The senate committees committed grave
abuse of discretion in issuing the contempt
order in view of the following reasons.
(a) There is a legitimate claim of executive
privilege
(b) Committees did not send him an advance
list of questions
(c) Members who did not actually participate in
the deliberation were made to sign the
contempt order
(d) Not having published its Rules of Procedure,
the subject hearings in aid of legislation
conducted by the 14th Senate, are therefore,
procedurally infirm
(e) The Committees must first rule on the claim
of executive privilege and inform petitioner of
75
their finding, instead of peremptorily dismissing
his explanation as "unsatisfactory.
19. Case Summary
Roces vs HRET (2005)
G.R. No. 167499 | 2005-09-15
Subject: HRET has the power to determine
whether it has jurisdiction over the controversy;
Mrs. Ang Ping is a proper party to contest the
election of Roces; Motion for reconsideration of
COMELEC Division order or resolution is a
prerequisite before COMELEC En Banc may take
congnizance (COMELEC En Banc improperly
issued Resolution No. 6823); COMELEC's
resolutions are void ab initio for violating Mrs.
Ang Ping's constitutional right to due process; A
void judgment or resolution may be impeached
through collateral attack;
Facts:
Petitioner Miles Roces and former Congressman
Harry Ang Ping filed their respective certificates
of candidacy (COCs) for the position of
Representative for the 3rd Congressional
District of Manila in the May 2004 elections.
A registered voter of Manila named Alejandro
Gomez questioned Mr. Ang Ping's candidacy
before the COMELEC through a petition to deny
due course or cancel his COC. The petition
alleged that Mr. Ang Ping misrepresented
himself to be a natural-born citizen, hence was
disqualified for the position.
Acting for the COMELEC First Division,
Commissioner Garcilliano issued an order on
April 30, 2004 scheduling the promulgation of
its resolution on May 5, 2004. Two days
before the scheduled promulgation or on May 3,
2004, Mr. Ang Ping filed with the COMELEC a
Sworn Declaration of Withdrawal of his COC.
The next day, the Nationalist Peoples Coalition,
the political party of Mr. Ang Ping, sought that
Mr. Ang Ping's wife, Ma. Zenaida Ang Ping (Mrs.
Ang Ping), substitute for him. Mr. Ang Ping also
filed a motion to dismiss the petition to deny
due course or cancel his COC.
On May 5, 2004, Commissioner Borra deferred
the promulgation for lack of quorum.
The COMELEC First Division issued a resolution
granting the petition to deny due course to Mr.
Ang Ping's COC and ordering the Board of
Election Inspectors of Manila not to count any
vote cast in his favor. It ruled that the
resolution which was originally scheduled for
promulgation by Commissioner Garcilliano on
May 5, 2004 was instead promulgated on April
30, 2004.
The COMELEC First Division issued on the same
date an order denying Mr. Ang Ping's motion to
dismiss. It held that the motion to dismiss was
filed after the "promulgation" of the April 30,
2004 resolution granting the petition to deny
due course to Mr. Ang Ping's COC.
Mr. Ang Ping moved for reconsideration of the
April 30, 2004 resolution and the case was
elevated to the COMELEC en banc.
While the case was still with the COMELEC First
Division, or on May 8, 2004, the COMELEC en
banc issuedResolution No. 6823, declaring
moot Mr. Ang Ping's Affidavit of Withdrawal,
denying due course to the substitute COC of
Mrs. Ang Ping and ordering the deletion of Mr.
Ang Ping's name from the certified list of
candidates. Among the signatories to the
Resolution were Commissioners Javier, Borra,
and Garcilliano of the COMELEC First
Division before which the petition to deny due
course was still pending.
The spouses Ang Ping repaired to the Supreme
Court and filed a petition for certiorari with
prayer for temporary restraining order assailing
COMELEC Resolution No. 6823.
On the election day itself, the Manila City Board
of Canvassers (BOC) resolved not to canvass
the votes for Mr. or Mrs. Ang Ping citing
COMELEC Resolution No. 6823. After counting
only 6,347 votes out of the 150,387 registered
voters in the district, the Manila BOC
proclaimed Roces as winner on May 15, 2004.
Mrs. Ang Ping filed an Election Protest Ad
Cautelam with the House of Representatives
Electoral Tribunal (HRET) challenging COMELEC
Resolution No. 6823. Roces filed his answer
alleging that the HRET has no jurisdiction over
the case.
The Supreme Court dismissed the certiorari
76
petition in view of the pending HRET
protest filed by Mrs. Ang Ping. Thereafter, Mrs.
Ang Ping filed in the HRET a motion to convert
the ad cautelam protest to a regular protest.
The motion was granted.
In the HRET, Roces filed a motion to dismiss the
protest, assailing in the main the personality of
Mrs. Ang Ping to file the protest. The HRET
denied Roces's motion to dismiss. It ruled that
Mrs. Ang Ping was a proper party to file the
protest against Roces since there was no final
COMELEC resolution disqualifying or denying
due course to the COC of Mr. Ang Ping, thus her
substitution for the latter was legally
permissible under the Omnibus Election Code.
Also, she was one of the candidates voted for
during election day
Roces then filed the present petition
for certiorari assailing the resolutions of the
HRET. The issues for resolutionare:
(1) whether or not the HRET committed grave
abuse of discretion amounting to lack or excess
of jurisdiction when it ruled that Mrs. Ang Ping
is a proper party to file the election protest
despite the denial in due course and
cancellation of her COC under COMELEC
Resolution No. 6823; and
(2) whether or not HRET has jurisdiction to
review a resolution or order of the COMELEC
and/or declare the same as void and disregard
or set it aside.
Held:
HRET has the power to determine whether
it has jurisdiction over the controversy
1. The HRET did not commit grave abuse of
discretion amounting to lack or excess of
jurisdiction when it denied the Roces' motion to
dismiss.
2. The HRET is the sole judge of all contests
relating to the election, returns, and
qualifications of the members of the House of
Representatives and has the power to
promulgate procedural rules to govern
proceedings brought before it. This exclusive
jurisdiction includes the power to determine
whether it has the authority to hear and
determine the controversy presented, and the
right to decide whether that state of facts exists
which confers jurisdiction, as well as all other
matters which arise in the case legitimately
before it. Accordingly, it has the power to hear
and determine, or inquire into, the question of
its own jurisdiction, both as to parties and as to
subject matter, and to decide all questions,
whether of law or fact, the decision of which is
necessary to determine the question of
jurisdiction. One of the three essential elements
of jurisdiction is that proper parties must be
present. Consequently, the HRET merely
exercised its exclusive jurisdiction when it ruled
that Mrs. Ang Ping was a proper party to
contest the election of Roces.
3. In order to support his motion to dismiss,
Roces offered as evidence the COMELEC
resolutions denying due course to Mrs. Ang
Ping's COC. In doing so, Roces submitted to the
HRET the admissibility and validity of these
resolutions and the HRET cannot be faulted in
reviewing the said resolutions especially for the
purpose of determining whether Roces was able
to discharge his burden of proving that Mrs.
Ang Ping is not the proper party to assail his
election. In passing upon the COMELEC
resolutions especially for that purpose, it
cannot be said that the HRET usurped the
jurisdiction of the COMELEC.
Mrs. Ang Ping is a proper party to contest
the election of Roces
4. The HRET did not abuse its discretion in
holding that Mrs. Ang Ping is a proper party to
contest the election of Roces.
5. Under COMELEC rules of procedure, the
promulgation of a decision or resolution of the
Commission or a Division shall be made on a
date previously fixed, of which notice shall be
served in advance upon the parties or their
attorneys personally or by registered mail or by
telegram.
6. Promulgation is important because it
determines when the reglementary period
begins to toll. In the case at bar, Commissioner
Garcilliano fixed the promulgation of its
resolution whether to give due course to the
candidacy of Mr. Ang Ping on May 5, 2004.
However, for mysterious reasons, the COMELEC
77
First Division of Commissioner Garcillano did
not promulgate the resolution on May 5, 2004
in accordance with its notice of promulgation.
Despite the deferment of the promulgation by
Commissioner Borra to a date to be set by the
COMELEC First Division, the resolution was
deemed "promulgated" by the COMELEC on
April 30, 2004 when it was filed with the clerk
of court. The April 30, 2004 COMELEC
resolution was received by Mr. Ang Ping's
counsel only on May 8, 2004. Yet on May 5,
2004, the COMELEC First Division denied Mr.
Ang Ping's motion to dismiss on the ground that
the motion was filed after the April 30, 2004
resolution.
Motion for reconsideration of COMELEC
Division order or resolution is a
prerequisite before COMELEC En Banc may
take cognizance (COMELEC En Banc
improperly issued Resolution No. 6823)
7. The COMELEC en banc usurped the
jurisdiction of the COMELEC First Division when
it issued Resolution No. 6823 on May 8, 2004
despite the fact that: (1) the reglementary
period of Mr. Ang Ping to appeal had not yet
expired; and (2) Mr. Ang Ping had filed a motion
for reconsideration on May 10, 2004 within the
five-day reglementary period.
8. Nowhere is it provided in the law that the
COMELEC en banc has the power to assume
jurisdiction motu proprioover a petition to deny
due course pending before a division of the
Commission. In fact, the Constitution and
COMELEC Rules of Procedure provide
that motions for reconsideration of the
COMELEC division's decisions, resolutions,
orders or rulings must first be filed in the
Divisions before the Commission en banc may
take cognizance thereof. (see Article IX-C,
Section 3, 1987 Constitution, and 1993
COMELEC Rules of Procedure, Rule 3, Section 3
and Rule 19, Sections 5-6)
9. This premature COMELEC Resolution No.
6823 was then used on May 12, 2004, or on the
election day itself, by the Manila City Board of
Canvassers as the basis of its resolution not to
canvass the votes for Mr. or Mrs. Ang Ping.The
effect of COMELEC en banc Resolution No. 6823
was to execute the April 30, 2004 resolution of
its First Division which, at that time, had not yet
become final and executory. These
irregularities cannot be swept away by the
belated COMELEC en banc's April 28, 2005
resolution denying Mr. Ang Ping's motion for
reconsideration dated May 10, 2004.
10. Citing T.H. Valderama & Sons, Inc. v. Drilon,
it is argued that Mrs. Ang Ping's motions for
reconsideration and appeals "cured" whatever
defects occurred at the COMELEC. Contrary to
Roces's posture, Valderama and its kin required
that the aggrieved party be given an
opportunity to be heard. In the case at bar, Mrs.
Ang Ping was systematically denied the
opportunity to be heard. The resolution of the
COMELEC's First Division was made before its
priorily set date of promulgation, deemed final
and executory by the COMELEC en banc in
Resolution No. 6823 before expiry of the
reglementary period, and executed by the
Manila City Board of Canvassers. The petition
forcertiorari filed by Mrs. Ang Ping challenged
these resolutions and could not have cured
these blatant violations of her right to due
process.
COMELEC's resolutions are void ab
initio for violating Mrs. Ang Ping's
constitutional right to due process
11. The COMELEC's resolutions are void ab
initio for violating Mrs. Ang Ping's constitutional
right to due process. Judgments entered in a
proceeding failing to comply with procedural
due process are void, as is one entered by a
court acting in a manner inconsistent with due
process. A void judgment is defined as one
that, from its inception, is a complete nullity
and without legal effect. A void judgment is not
entitled to the respect accorded to, and is
attended by none of the consequences of, a
valid adjudication. Indeed, a void judgment
need not be recognized by anyone, but may be
entirely disregarded or declared inoperative by
any tribunal in which effect is sought to be
given to it. It has no legal or binding force or
efficacy for any purpose or at any place. It
cannot affect, impair, or create rights, nor can
any rights be based on it. All proceedings
founded on the void judgment are themselves
regarded as invalid and ineffective for any
purpose. Needless to stress, the HRET did not
78
commit grave abuse of discretion in assuming
jurisdiction over the election protest as the
COMELEC Resolution dated April 30, 2004,
Order of May 5, 2004, and Resolution No. 6823
were void ab initio.
A void judgment or resolution may be
impeached through collateral attack
12. Petitioner contends that the HRET cannot
review decisions of the COMELEC and that
COMELEC decisions, orders, or rulings may be
solely reviewed by the Supreme Court
on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof. It is
true that generally, the method of assailing a
judgment or order of the COMELEC is via
petition for certiorari. As aforestated, however,
it was petitioner who submitted these
resolutions to the HRET as proofs that Mrs. Ang
Ping was not a proper party. These same
resolutions were collaterally attacked by Mrs.
Ang Ping before the HRET when she alleged
that these violated her right to due process.
13. A void judgment or resolution may be
impeached through collateral attack. A direct
attack on a judgment or resolution is defined as
an attempt to avoid or correct it in some
manner provided by law, in a proceeding
instituted for that very purpose, in the same
action and in the same tribunal. Conversely,
a collateral attack is an attempt to impeach the
judgment or resolution by matters dehors the
record, before a tribunal other than the one in
which it was rendered, in an action other than
that in which it was rendered; an attempt to
avoid, defeat, or evade it, or deny its force and
effect, in some incidental proceeding not
provided by law for the express purpose of
attacking it; any proceeding which is not
instituted for the express purpose of annulling,
correcting, or modifying such decree; an
objection, incidentally raised in the course of
the proceeding, which presents an issue
collateral to the issues made by the pleadings.
The rule that a void judgment or decree is
subject to collateral attack at any time is based
upon a court's inherent authority to expunge
void acts from its records. The void resolutions
of the COMELEC, especially the April 30, 2004
resolution issued by its First Division, cannot
oust the HRET of its jurisdiction over the case at
bar.
20. Case Summary
Sabio v. Gordon
G.R. Nos. 174340, 174318 and 174177 | 2006-
10-17
Subject: Legislative inquiry in aid of
legislation, Right of Privacy, Right against Self-
Incrimination, Contempt power of the
Legislative.
Facts:
A Senate Resolution was introduced by Senator
Miriam Santiago "directing an inquiry in aid of
legislation on the anomalous losses incurred by
the POTC, PHILCOMSAT and Philcomsat
Holdings due to the alleged improprieties in
their operations by their respective Board of
Directors
Then PCGG Chairman Camilo Sabio was invited
by the Senate to be one of its resource persons.
Chairman Sabio declined, invoking Section 4 (b)
of EO No. 1 which provides that "No member or
staff of the [PCGG] shall be required to testify
or produce evidence in any judicial, legislative
or administrative proceeding concerning
matters within its official cognizance"
Notwithstanding the Subpoena Ad
Testificandum issued by Senator Gordon to
Chairman Sabio and other PCGG Comissioners,
they refused to appear before the Senate and
pointed out that the anomalous transactions
referred to in the Senate Resolution are subject
of pending cases before the regular courts, the
Sandiganbayan and the Supreme Court for
which reason they may not be able to testify
thereon under the principle of sub judice.
Section 4 (b) of EO No. 1 is challenged on the
ground that it tramples upon the Senate's
power to conduct legislative inquiry under
Article VI, Section 21 of the 1987 Constitution.
Held: Section 4 (b) of EO No. 1 is
unconstitutional.
Power of Legislative Inquiry
1. The power of inquiry is inherent in the
power to legislate. The power of inquiry - with
process to enforce it - is an essential and
79
appropriate auxiliary to the legislative function.
Hence, there need not be any express provision
in the Constitution granting such powers to the
legislative since it is already impliedly included
in the function of legislation.
2. Notably, Article VI, Section 21 grants the
power of inquiry not only to the Senate and the
House of Representatives, but also to any of
their respective committees.
3. Section 4(b) is directly repugnant with
Article VI, Section 21 as it exempts the PCGG
members and staff from the Congress' power of
inquiry. The Congress' power of inquiry, being
broad, encompasses everything that concerns
the administration of existing laws as well as
proposed or possibly needed statutes. It even
extends "to government agencies created by
Congress and officers whose positions are
within the power of Congress to regulate or
even abolish. PCGG belongs to this class.
4. Section 4(b), being in the nature of an
immunity, is inconsistent with the principle of
public accountability. It places the PCGG
members and staff beyond the reach of courts,
Congress and other administrative bodies.
5. Corollarily, Sec. 4(b) also runs counter to
the following constitutional provisions: Art. II,
Sec. 28 (policy of full public disclosure), Art. III,
Sec. 7 (right of the people to information on
matters of public concern).
Right to Privacy
6. One important limitation on the Congress'
power of inquiry is that "the rights of persons
appearing in or affected by such inquiries shall
be respected." This means that the power of
inquiry must be "subject to the limitations
placed by the Constitution on government
action." (i.e. Bill of Rights)
7. The Bill of Rights guarantees the right to
privacy. In evaluating a claim for violation of the
right to privacy, a court must determine
whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that
expectation has been violated by unreasonable
government intrusion.
8. The legislative inquiry focuses on acts
committed in the discharge of duties as officers
and directors of the said corporations.
Consequently, the directors of POTC, Philcomsat
have no reasonable expectation of privacy over
matters involving their offices in a corporation
where the government has interest. Certainly,
such matters are of public concern and over
which the people have the right to information.
9. The right to privacy is not absolute where
there is an overriding compelling state interest.
10. The right of the people to access
information on matters of public concern
prevails over the right to privacy of financial
transactions
Right against Self-Incrimination
11. The right against self-incrimination may be
invoked by the said directors and officers of
Philcomsat only when the incriminating
question is being asked, since they have no
way of knowing in advance the nature or effect
of the questions to be asked of them.
12. That this right may possibly be violated or
abused is no ground for denying the Senate
Committees their power of inquiry. When this
power is abused, such issue may be presented
before the courts.
Contempt Power of the Legislative
13. The exercise by the legislature of the
contempt power is a matter of self-preservation
as that branch of the government vested with
the legislative power, independently of the
judicial branch, asserts its authority and
punishes contempts thereof. The contempt
power of the legislature is, therefore, sui
generis. (citing Negros Oriental II Electric
Cooperative, Inc. v. Sangguniang Panlungsod of
Dumaguete)
Sub Judice
14. It is contended that the Senate is barred
from inquiring into the same issues being
litigated before the Court of Appeals and the
Sandiganbayan. Suffice it to state that the
Senate Rules of Procedure Governing Inquiries
in Aid of Legislation provide that the filing or
80
pendency of any prosecution of criminal or
administrative action should not stop or abate
any inquiry to carry out a legislative purpose.
21. Case Summary
Sema vs Comelec (2008)
G.R. No. 177597 and G.R. No. 178628 | 2008-
07-16
Subject: Writs of certiorari and mandamus not
applicable; The writ of prohibition is appropriate
to test the constitutionality of election laws,
rules and regulations; Dilangalens
proclamation did not render the petition moot;
Creation of provinces, cities and municipalities
requires a legislative act from Congress, while
creation of a barangay may be delegated to
local legislative bodies; Section 19, Article VI of
RA 9054, which grants to the ARMM Regional
Assembly the power to create provinces and
cities, is Unconstitutional; Legislative districts
are created or reapportioned only by an act of
Congress; For a legislative body to create a
province such legislative body must have the
power to create legislative districts
Facts:
The Province of 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).
The Ordinance appended to the 1987
Constitution apportioned two legislative
districts for Maguindanao. The first legislative
district consists of Cotabato City and eight
municipalities. However, while 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 ARMM Regional
Assembly, exercising its power to create
provinces under Section 19, Article VI of RA
9054, 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 provided that the
eight municipalities shall be separated from the
Province of Maguindanao and constituted into a
distinct and independent province (Shariff
Kabunsuan). 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.
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.
The COMELEC issued Resolution No. 07-0407
dated March 6, 2007 "maintaining the status
quo with Cotabato City as part of Shariff
Kabunsuan in the First Legislative District of
Maguindanao.
However, in preparation for the May 2007
elections, COMELEC promulgated Resolution
No. 7845 stating that Maguindanaos first
legislative district is composed only of Cotabato
City because of the enactment of MMA Act 201
COMELEC issued Resolution No. 7902,
amending Resolution No. 07-0407 by renaming
the first legislative district as Shariff
Kabunsuan Province with Cotabato City
(formerly First District of Maguindanao with
Cotabato City).
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, who was a candidate in the May 2007
elections for Representative of Shariff
Kabunsuan with Cotabato City, prayed for the
nullification of COMELEC Resolution No. 7902,
treating Cotabato City as part of the legislative
district of the Province of Shariff Kabunsuan,
and the exclusion from canvassing of the votes
cast in Cotabato City for that office. Sema
claimed that in issuing Resolution No. 7902, the
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COMELEC usurped Congress power to create or
reapportion legislative districts.
COMELEC contended that (1) Sema wrongly
availed of the writ of certiorari to nullify
Resolution No. 7902 because the COMELEC
issued the same in the exercise of its
administrative, not quasi-judicial, power and (2)
Semas prayer for the writ of prohibition
became moot with the proclamation of
respondent Didagen P. Dilangalen as
representative of the legislative district of
Shariff Kabunsuan Province with Cotabato City.
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.
The issues are (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.
Held:
I. Procedural Issues
Writs of certiorari and mandamus are not
applicable
1. 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. However, The
COMELEC did not issue Resolution No. 7902 in
the exercise of its judicial or quasi-judicial
functions.
2. 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. However, there is no 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.
The writ of prohibition is appropriate to
test the constitutionality of election laws,
rules and regulations
3. The inapplicability of certiorari and
mandamus, 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.
Dilangalens proclamation did not render
the petition moot
4. Dilangalens proclamation as winner in the
14 May 2007 elections for representative of
Shariff Kabunsuan Province with Cotabato
City did not moot this petition. This case does
not concern 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.
5. 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 the court 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.
82
 Section 19, Article VI of RA 9054, which
II. Substantive Issues grants to the ARMM Regional Assembly
the power to create provinces and cities,
Creation of provinces, cities and is Unconstitutional
municipalities requires a legislative act
from Congress, while creation of a 10. Under Section 19, Article VI of RA 9054,
barangay may be delegated to local Congress delegated to the ARMM Regional
legislative bodies Assembly the power to create provinces, cities,
municipalities and barangays within the ARMM.
6. The creation of local government units is
governed by Section 10, Article X of the 11. There is no provision in the Constitution
Constitution, which provides: that conflicts with the delegation to regional
legislative bodies of the power to
Sec. 10. No province, city, municipality, or create municipalities and barangays,
barangay may be created, divided, merged, provided Section 10, Article X of the
abolished or its boundary substantially altered Constitution is followed. However, the creation
except in accordance with the criteria of provinces and cities is another matter.
established in the local government code and Section 5 (3), Article VI of the Constitution
subject to approval by a majority of the votes provides, Each city with a population of at
cast in a plebiscite in the political units directly least two hundred fifty thousand, or each
affected. province, shall have at least one
representative in the House of
7. Thus, the creation of any of the four Representatives. Similarly, Section 3 of the
local government units province, city, Ordinance appended to the Constitution
municipality or barangay must comply provides, Any province that may hereafter be
with three conditions. created, or any city whose population may
hereafter increase to more than two hundred
First, the creation of a local government unit fifty thousand shall be entitled in the
must follow the criteria fixed in the Local immediately following election to at least one
Government Code. Member x x x.
Second, such creation must not conflict with
any provision of the Constitution. 12. Clearly, a province cannot be created
Third, there must be a plebiscite in the political without a legislative district because it will
units affected. violate Section 5 (3), Article VI of the
Constitution as well as Section 3 of the
8. Under its plenary legislative powers, Ordinance appended to the Constitution. For
Congress can delegate to local legislative the same reason, a city with a population of
bodies the power to create local government 250,000 or more cannot also be created
units, subject to reasonable standards and without a legislative district. Thus, the power to
provided no conflict arises with any provision of create a province, or a city with a population of
the Constitution. In fact, Congress 250,000 or more, requires also the power to
has delegated to provincial boards, and city create a legislative district. Even the creation of
and municipal councils, the power to a city with a population of less than 250,000
create barangays within their involves the power to create a legislative
jurisdiction, subject to compliance with district because once the citys population
the criteria established in the Local reaches 250,000, the city automatically
Government Code, and the plebiscite becomes entitled to one representative. Thus,
requirement. the power to create a province or city
inherently involves the power to create a
9. However, under the Local Government legislative district.
Code, only an Act of
Congress can create provinces, cities or 13. For Congress to delegate validly the power
municipalities. to create a province or city, it must also validly
delegate at the same time the power to create
83
a legislative district. The 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.
Legislative districts are created or
reapportioned only by an act of Congress
14. Under Section 5, Article VI of the
Constitution, the power to increase the
allowable membership in the House of
Representatives, and to reapportion
legislative districts, is vested exclusively
in Congress.
15. 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.
16. 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. Congress is a national
legislature and any increase in its 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.
17. Moreover, 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. 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. 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.
18. 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. Nothing in
Section 20, Article X of the Constitution
authorizes autonomous regions, expressly or
impliedly, to create or reapportion legislative
districts for Congress.
19. 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. 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.
For a legislative body to create a province
such legislative body must have the
power to create legislative districts
20. Sema contends that with the creation of
Province of Shariff Kabunsuan, it is
automatically entitled to one member in the
House of Representatives. As support for her
stance, she 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.
21. 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.
22. What Felwa teaches is that the creation of
84
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.
23. 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.
24. Under Section 19, 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 the
Local Government Code (RA 716), namely: (a)
minimum annual income of P20,000,000, and
(b) minimum contiguous territory of 2,000
square kilometers or minimum population of
250,000. If upheld, this will lead to absurd
consequences not contemplated by the framers
of the Constitution. (ex: 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.
Further, 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)
25. 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 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.
In summary:
(a) 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.
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.
(b) MMA Act 201, enacted by the ARMM
Regional Assembly and creating the Province
of Shariff Kabunsuan,is void.
(c) COMELEC Resolution No. 7902,
85
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.
22. Case Summary
Lawyer's League for a Better Philippines
vs Aquino (1986)
G.R. No. 73748 | 1986-05-22
Subject: Legitimacy of the Aquino government
is a political and not a justiciable matter
Facts:
Several petitions were filed questioning the
legitimacy of the government of President
Aquino. It is claimed that her government is
illegal because it was not established pursuant
to the 1973 Constitution.
Held:
Legitimacy of the Aquino government is a
political and not a justiciable matter
1. Petitioners have no personality to sue and
their petitions state no cause of action. For
the legitimacy of the Aquino government is not
a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines
are the judge. And the people have made the
judgment; they have accepted the government
of President Corazon C. Aquino which is in
effective control of the entire country so that it
is not merely a de facto government but is
in fact and law a de jure government.
Moreover, the community of nations has
recognized the legitimacy of the present
government. All the eleven members of this
Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her
government.
23. Case Summary
Estrada v. Desierto
G.R. No. 146710-15 and G.R. No. 146738 |
2001-03-02
Subject:
Political Question; EDSA 1 vs EDSA 2;
Resignation; Conviction by Impeachment as a
Bar to Prosecution; Presidential Immunity from
Suit; Public Office is a Public Trust; Theory of
Derivative Prejudice
Facts:
Former President Joseph Estrada was elected
during 1998 elections. Sometime in October
2000, however, several allegations of
corruption and of receiving millions of pesos
from jueteng lords were made against him
before the Senate Blue Ribbon Committee.
Some Congressmen moved to impeach Estrada
which caused several sectors, former Presidents
Aquino and Ramos to call for Estradas
resignation. Some senior advisers of Estrada as
well as a number of his cabinet resigned from
their positions. Impeachment trial commenced
with Chief Justice Davide presiding.
The impeachment trial was put to a halt after
the public prosecutors tendered their collective
resignation before the Impeachment Tribunal
caused by the decision of 11 Senators not to
open the second envelope (an alleged secret
account of Erap amounting to 3.3B Pesos in the
name of Jose Velarde). An indefinite
postponement of the Impeachment proceedings
was granted by the Chief Justice.
The next day, EDSA 2 commenced with the PNP
and AFP joining the crowd. In the succeeding
days, a chain of resignations from the military,
the police, and the cabinet ensued. On January
20, Supreme Court declared the seat for
presidency as vacant, saying that Estrada
constructively resigned his post. At noon,
Chief Justice, whose authority was later
unanimously confirmed by SC, administered the
oath to Arroyo as President of the Philippines.
86
That same afternoon, Estrada and his family left
Malacaang and transmitted a signed letter
appointing then Vice-President Arroyo as Acting
President, citing Section 11, Article 7 of the
Constitution, to the House Speaker and Senate
President.
Several cases were filed against Estrada in the
Office of the Ombudsman. Estrada filed with
the Supreme Court a petition for prohibition
which sought to enjoin the Ombudsman from
conducting any further proceedings in cases
filed against him, not until his term as president
ends. He also filed a petition for quo warranto
praying for judgment confirming him to be the
lawful and incumbent President of the
Philippines temporarily unable to discharge
the duties of his office.
Held:
Political Question
1. The Court held that the cases at bar do
not involve a political question and therefore
falls within the ambit of judicial scrutiny
pursuant to the doctrine of separation of
powers of coordinate branches of government.
2. Political question refers to those questions
which, under our Constitution, are to be
decided by the people in their sovereign
capacity, or in regard to which full discretionary
authority has been delegated to the legislative
or executive branch of government. It is
concerned with the issues dependent on the
wisdom, not legality of a particular measure.
3. To a great degree, the 1987 Constitution has
narrowed the reach of the political question
doctrine when it expanded the power of judicial
review of this court not only to settle actual
controversies involving rights which are legally
demandable and enforceable but also to
determine whether or not there has been a
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch
or instrumentality of government.
EDSA 1 vs EDSA 2
4. EDSA People Power I involves the exercise of
the people power of revolution which overthrew
the whole government while EDSA People
Power II is an exercise of people power of
freedom of speech and freedom of assembly to
petition the government for redress of
grievances which only affected the office of the
President.
5. EDSA I is extra constitutional but EDSA II
is intra constitutional.
6. EDSA I presented a political question while
EDSA II involved legal questions.
Resignation
7. Using the totality test, the Supreme Court
held that petitioner resigned as President -
which was confirmed by his leaving
Malacaang.
8. Facts show that petitioner did not write any
formal letter of resignation before he evacuated
Malacanang Palace in the afternoon of January
20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner
resigned has to be determined from his acts
and omissions before, during and after January
20, 2001 or by the totality of prior,
contemporaneous and posterior facts and
circumstantial evidence bearing a material
relevance on the issue.
9. In the press release containing his final
statement,
(1) He acknowledged the oath-taking of Arroyo
as President of the Republic albeit with
87
reservation about its legality;
(2) He emphasized he was leaving the Palace,
the seat of the presidency, for the sake of
peace and in order to begin the healing process
of our nation. He did not say he was leaving the
Palace due to any kind of inability and that he
was going to re-assume the presidency as soon
as the disability disappears;
(3) He expressed his gratitude to the people for
the opportunity to serve them. Without doubt,
he was referring to the past opportunity given
him to serve the people as President;
(4) He assured that he will not shirk from any
future challenge that may come ahead in the
same service of our country. Petitioners
reference is to a future challenge after
occupying the office of the president which he
has given up;
and
(5) He called on his supporters to join him in
the promotion of a constructive national spirit
of reconciliation and solidarity. Certainly, the
national spirit of reconciliation and solidarity
could not be attained if he did not give up the
presidency.
10. Resignation is a factual question and
its elements are beyond quibble: (1) there must
be an intent to resignand (2) the intent must be
coupled by acts of relinquishment. The validity
of a resignation is not governed by any formal
requirement as to form. It can be oral. It can be
written. It can be express. It can be implied. As
long as the resignation is clear, it must be given
legal effect.
11. A public official has the right not to serve if
he really wants to retire or resign. Nevertheless,
if at the time he resigns or retires, a public
official is facing administrative or criminal
investigation or prosecution, such resignation
or retirement will not cause the dismissal of the
criminal or administrative proceedings against
him. He cannot use his resignation or
retirement to avoid prosecution.
Recognition of Presidency of Arroyo
12. The issue whether the Supreme Court has
jurisdiction to review the claim of temporary
inability of former President Estrada and
thereafter revise the decision of both Houses of
Congress recognizing Arroyo as President is
political in nature and addressed solely to
Congress by constitutional fiatit is a political
issue which cannot be decided by the Supreme
Court without transgressing the principle of
separation of powers.
13. Implicitly clear in the recognition by both
houses of Congress of Arroyo as President is the
premise that the inability of former President
Estrada is no longer temporary.
14. Former President Estrada cannot
successfully claim that he is a President on
leave on the ground that he is merely unable to
govern temporarily since such claim has been
laid to rest by Congress and the decision that
President Arroyo is the de jure President made
by a co-equal branch of government cannot be
reviewed by the Supreme Court.
Conviction by Impeachment as a Bar to
Prosecution
15. The Supreme Court rejects former President
Estradas argument that he cannot be
prosecuted for the reason that he must first be
convicted in the impeachment proceedings. His
impeachment trial was aborted by the walkout
of the prosecutors and by the events that led to
his loss of the presidency. Indeed, on February
7, 2001, the Senate passed Senate Resolution
No. 83 Recognizing that the Impeachment
Court is Functus Officio. Since the
Impeachment Court is now functus officio, it is
untenable for petitioner to demand that he
should first be impeached and then convicted
88
before he can be prosecuted. The plea if
granted, would put a perpetual bar against his
prosecution. It will place him in a better
situation than a non-sitting President who has
not been subjected to impeachment
proceedings and yet can be the object of a
criminal prosecution.
Presidential Immunity from Suit
16. Estrada does NOT enjoy immunity from suit.
Incumbent Presidents are immune from suit or
from being brought to court during the period
of their incumbency and tenure but not
beyond in accordance with the ruling inIn Re:
Saturnino Bermudez.
17. The cases filed against petitioner Estrada
are criminal in character (plunder, bribery and
graft and corruption). Estrada cannot cite any
decision of this Court licensing the President to
commit criminal acts and wrapping him with
post-tenure immunity from liability. The rule is
that unlawful acts of public officials are not acts
of the State and the officer who acts illegally is
not acting as such but stands in the same
footing as any other trespasser.
Public Office is a Public Trust
18. One of the great themes of the 1987
Constitution is that a public office is a public
trust.
It declared as a state policy that (t)he
State shall maintain honesty and integrity in
the public service and take positive and
effective measures against graft and
corruption.
It ordained that (p)ublic officers and
employees must at all times be accountable
to the people, serve them with utmost
responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice,
and lead modest lives.
It set the rule that (t)he right of the
State to recover properties unlawfully
acquired by public officials or employees,
from them or from their nominees or
transferees, shall not be barred by
prescription, laches or estoppel.
It maintained the Sandiganbayan as an
anti-graft court.
It created the office of the Ombudsman
and endowed it with enormous powers,
among which is to (investigate on its own,
or on complaint by any person, any act or
omission of any public official, employee,
office or agency, when such act or omission
appears to be illegal, unjust, improper, or
inefficient. The Office of the Ombudsman
was also given fiscal autonomy.
Theory of Derivative Prejudice
19. The Court cannot adopt former President
Estradas theory of derivative prejudice,
i.e., that the prejudice of the Ombudsman flows
to his subordinates.
20. Our Revised Rules of Criminal Procedure
give investigating prosecutors the
independence to make their own findings and
recommendations albeit they are reviewable by
their superiors. They can be reversed but they
cannot be compelled to change their
recommendations nor can they be compelled to
prosecute cases which they believe deserve
dismissal. In other words, investigating
prosecutors should not be treated like
unthinking slot machines. Moreover, if the
respondent Ombudsman resolves to file the
cases against the petitioner and petitioner
believes that the finding of probable cause
against him is the result of bias, he still has the
remedy of assailing it before the proper court.
24. In Re: Appointments dated March 30,
1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the
Regional Trial Court of Branch 62, Bago
89
City, and of Branch 24, Cabanatuan City,
respectively.
A.M. No. 98-5-01-SC, November 9, 1998
(In this case, the Supreme Court holds that the
ninety-day period mandated by Section 4(1),
Article VIII of the 1987 Constitution for the
filling of vacancies in the Supreme Court, is
restricted by Section 15, Article VII of the 1987
Constitution, prohibiting the President from
making any appointments within two months
immediately before the next presidential
elections and up to the end of his term;
mentions and discusses midnight
appointment)
Facts:
Ricardo J. Francisco retired from his office
as Associate Justice of the Supreme Court.
President Fidel Ramos asked from the Judicial
and Bar Council (JBC) the final list of nominees
from whom he will choose and appoint to
succeed the retired Justice. But the JBC, headed
by Chief Justice Narvasa, encountered an
apparent conflict between two particular
provisions of the Constitution regarding the
Presidents power to appoint Members of the
Supreme Court and judges of lower courts.
Section 15, Article VII of the 1987 Constitution
provides: Two months immediately before the
next presidential elections and up to the end of
his term, a President or Acting President shall
not make appointments, except temporary
appointments to executive positions when
continued vacancies therein will prejudice
public service or endanger public safety.
However, Section 4(1), Article VIII of the 1987
Constitution seems to allow the President to
make appointments to vacancies in the
Supreme Court within the two-month ban, to
wit: The Supreme Court shall be composed of
a Chief Justice and fourteen Associate Justices.
It may sit en banc or in its discretion, in
divisions of three, five, or seven Members. Any
vacancy shall be filled within ninety days from
the occurrence thereof.
President Fidel Ramos was of the view
that the election-ban provision under Section
15, Article VII applies only to executive
appointments or appointments in the Executive
branch of the government, the whole article
being entitled EXECUTIVE DEPARTMENT. He also
noted that appointments to the Judiciary have
special, specific provisions applicable to them,
citing Sec. 4 (1), Article VIII and Section 9,
Article VIII.
The JBC resolved to refer this apparent
constitutional conflict to the Supreme Court En
Banc. On March 30, 1998, however, President
Ramos sent to the Chief Justice the
appointment letters of two (2) Judges of the
Regional Trial Court: Hon. Mateo A. Valenzuela
and Hon. Placido B. Vallarta. This was about
less than a month before the May 11, 1998
elections.
Issue:
Whether or not the appointment of the two RTC
Judges was validly made.
Ruling:
The Supreme Court En Banc, through
Chief Justice Narvasa, holds that the
appointment of the two RTC Judges in this case
is void.
It is the Courts view that during the
period stated in Section 15, Article VII of the
Constitution (or two months immediately before
the next presidential elections and up to the
end of his term), the President is not required to
make appointments to the courts; and he is not
allowed to do so. Further, Sections 4(1) and 9
of Article VIII simply mean that the
President is required to fill vacancies in
the courts within the time frames
provided therein, unless prohibited by
Section 15 of Article VII. It is noteworthy
that the prohibition on appointments
comes into effect only once every six
years.
The Supreme Court explains that Section
15, Article VII is directed against two types of
appointments: (1) those made for buying votes,
and (2) those made for partisan considerations.
The first refers to those appointments
made within the two months preceding a
Presidential election and are similar to those
that are declared election offenses in the
Omnibus Election Code (i.e. vote-buying and
vote-selling, and appointment of new
employees, creation of new position, promotion
90
or giving of salary increases for purposes of
influencing the election).
The second type of appointments
prohibited by Section 15, Article VII consists of
the so-called midnight appointments. In
Aytona v. Castillo, it was held that after the
proclamation of Diosdado Macapagal as duly
elected President, President Carlos P. Garcia,
who was defeated in his bid for reelection,
became no more than a caretaker
administrator whose duty was to prepare for
the orderly transfer of authority to the incoming
President. Said the Court: The filling up of
vacancies in important positions, if few, and so
spaced as to afford some assurance of
deliberate action and careful consideration of
the need for the appointment and appointee's
qualifications may undoubtedly be permitted.
But the issuance of 350 appointments in one
night and the planned induction of almost all of
them in a few hours before the inauguration of
the new President may, with some reason, be
regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all
vacant positions irrespective of fitness and
other conditions, and thereby to deprive the
new administration of an opportunity to make
the corresponding appointments. The Court
recognizes the possibility of appointments to
important positions that must be made even
after the proclamation of the new President.
The outgoing President can make these
appointments, so long as they are few and so
spaced as to afford some assurance of
deliberate action and careful consideration of
the need for the appointment, and the
appointees qualifications.
The Court notes that the exception in
Section 15 of Article VII is much narrower than
that recognized in Aytona. The exception allows
only the making of temporary appointments to
executive positions, when continued vacancies
will prejudice public service or endanger public
safety. Section 15 Article VII greatly restricts
the appointing power of the President during
the period of the ban.
In case of conflict, Section 4(1) of Article
VIII should yield to Section 15 of Article VII of
the Constitution. The Supreme Court points out
that the instruction wherein any vacancy shall
be filled within ninety days (in the last
sentence of Section 4(1) of Article VIII)
contrasts with the prohibition in Section 15,
Article VII, which is couched in stronger
negative language: that a President or Acting
President shall not make appointments.
Further, the prevention of vote-buying and
similar evils outweighs the need for avoiding
delays in filling up of court vacancies or the
disposition of some cases. Temporary vacancies
can abide the period of the ban which,
incidentally and as earlier pointed out, comes
to exist only once in every six years. Moreover,
those occurring in the lower courts can be filled
temporarily by designation. On the other hand,
prohibited appointments are long lasting and
permanent in their effects. They may, in fact,
influence the results of elections. It is for this
reason that the same is considered an election
offense.
The appointments of Valenzuela and
Vallarta on March 30, 1998 (transmitted to the
Office of the Chief Justice on May 14, 1998)
were unquestionably made during the period of
the ban. Consequently, they come within the
operation of the first prohibition relating to
appointments that are considered to be for the
purpose of buying votes or influencing the
election. While the filling of vacancies in the
judiciary is undoubtedly in the public interest,
there is no showing in this case of any
compelling reason to justify the making of the
appointments during the period of the ban. On
the other hand, as already discussed, there is a
strong public policy for the prohibition against
appointments made within the period of the
ban.
25. Case Summary
De Castro v. Judicial and Bar Council
(2010)
G.R. No. 191002 | 2010-03-17
Subject:
Locus Standi, Taxpayers Suit, Citizens Suit,
Justiciable Issue, Midnight Appointment Ban,
Statutory Construction, Judicial and Bar Council,
Acting Chief Justice under the Judiciary Act of
1948, Chief Justice, Mandamus, Ministerial Act,
Discretionary Act
Facts:
91

This case involves several petitions filed either
for the prohibition of or mandamus for the
Judicial and Bar Council (JBC) to submit to the
President its list of nominees for the position of
Chief Justice. The case also raised the issue on
whether the appointment of the next Chief
Justice by the incumbent President GMA is a
midnight appointment prohibited by the
Constitution.
The controversy arose from the forthcoming
compulsory retirement of Chief Justice Puno on
May 17, 2010 or seven days after the
presidential election. On 22 December 2009,
Congressman Matias Defensor, an ex-officio
member of the JBC, addressed a letter to the
JBC and requested that the process for
nominations to the office of the Chief Justice be
commenced immediately. Consequently, the
JBC passed a resolution unanimously agreeing
to start the process of filling up the position of
Chief Justice. The process has already begun,
however, the JBC is not yet decided on when to
submit to the President its list of nominees due
to controversy in this case being unresolved.
The parties frequently cited the case of In Re
Appointments of Valenzuela and Vallarta
(Valenzuela) as a precedent, which held that
the prohibition of the President to make
midnight appointments under Section 15,
Article VII applies to appointments in the
judiciary.
Held:
Locus Standi
1. Locus standi is defined as a right of
appearance in a court of justice on a given
question.
2. It has been held that the interest of a person
assailing the constitutionality of a statute must
be direct and personal. He must be able to
show, not only that the law or any government
act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct
injury as a result of its enforcement, and not
merely that he suffers thereby in some definite
way.
3. It must appear that the person complaining
has been or is about to be denied some right or
privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or
penalties by reason of the statute or the act
complained of.
4. Legal standing is a peculiar concept in
constitutional law because in some cases, suits
are not brought by parties who have been
personally injured by the operation of law or
any other government act but by concerned
citizens, taxpayers or voters who actually sue in
the public interest.
Taxpayers Suit vs. Citizens Suit
5. In Beauchamp v. Silk, it was held that in a
taxpayers suit, the plaintiff is affected by the
expenditure of public funds, while in a citizens
suit, the plaintiff is but a mere instrument of the
public concern.
6. Terr v. Jordan held that the right of a citizen
and a taxpayer to maintain an action in courts
to restrain the unlawful use of public funds to
his injury cannot be denied.
Transcendental Importance
7. The Court retains the broad discretion to
waive the requirement of legal standing in favor
of any petitioner when the matter involved has
transcendental importance, or otherwise
requires a liberalization of the requirement.
Justiciable Issue
8. Although the position is not yet vacant, the
fact that the JBC began the process of
nomination pursuant to its rules and practices,
although it has yet to decide whether to submit
the list of nominees to the incumbent outgoing
President or to the next President, makes the
situation ripe for judicial determination.
9. There is no need to wait for the occurrence of
the vacancy in order for the principal issue to
be ripe for judicial determination by the Court.
It is enough that one alleges conduct arguably
affected with a constitutional interest, but
seemingly proscribed by the Constitution.
10. A reasonable certainty of the occurrence of
92
the perceived threat to a constitutional interest
is sufficient to afford a basis for bringing a
challenge, provided the Court has sufficient
facts before it to enable to intelligently
adjudicate the issues.
Midnight Appointment Ban
11. The prohibition against presidential
appointments under Section 15, Article VII
does not extend to appointments in the
Judiciary.
12. Article VII is devoted to the Executive
Department. Specifically, the presidential
power of appointment is dealt with in Sections
14, 15 and 16 of the Article. On the other hand,
Article VIII is dedicated to the Judicial
Department. Section 4(1) and Section 9
specifically provide for the appointment of the
Supreme Court Justices.
13. Had the framers intended to extend the
prohibition contained in Section 15, Article VII
to the appointment of Members of the Supreme
Court, they could have explicitly done so. They
could not have ignored the meticulous ordering
of the provisions.
Statutory Construction
14. The usage in Section 4(1), Article VIII of the
word shall constitutes an imperative duty on
the President to make an appointment of a
Member of the Supreme Court within 90 days
from the occurrence of the vacancy.
15. It is the intent of the Constitutional
Commission to have Section 4(1), Article VIII
stand independently of any other provision,
least of all one found in Article VII. The two
provisions had no irreconcilable conflict,
regardless of Section 15, Article VII being
couched in the negative.
16. The enactment should be construed with
reference to its intended scope and purpose,
and the court should seek to carry out this
purpose rather than to defeat it.
Rationale for the Prohibition
17. One of the reasons underlying the adoption
of Section 15, Article VII was to eliminate
midnight appointments, or appointments made
for partisan considerations, from being made by
an outgoing Chief Executive.
18. In contrast, the appointments to the
Judiciary made after the establishment of the
JBC would not be suffering from such defects
because of the JBCs prior processing of
candidates.
Judicial and Bar Council
19. The creation of the JBC was precisely
intended to depoliticize the Judiciary by doing
away with the intervention of the Commission
on Appointments.
20. The intervention of the JBC eliminates the
danger that appointments to the Judiciary can
be made for the purpose of buying votes in a
coming presidential election, or of satisfying
partisan considerations because any
recommended candidate first had to undergo
the vetting of the JBC and pass muster there.
21. It is mandatory for the JBC to submit to the
President the list of nominees to fill a vacancy
in the Supreme Court in order to enable
the President to appoint one of them within the
90-day period from the occurrence of the
vacancy.
22. The JBC has no discretion to submit the list
of nominees to fill a vacancy in the Supreme
Court to the President after the vacancy occurs,
because that shortens the 90-day period
allowed by the Constitution for the President to
make the appointment.
Valenzuela Ruling Reversed
23. Valenzuela arbitrarily ignored the express
intent of the Constitutional Commission to have
Section 4(1), Article VIII stand independently of
any other provision, least of all one found in
Article VII.
24. Valenzuela was weak, because it relied on
interpretation to determine the intent of the
framers rather than on the deliberations of the
Constitutional Commission.
93
25. To hold like the Court did in Valenzuela that
Section 15 extends to appointments to the
Judiciary further undermines the intent of the
Constitution of ensuring the independence of
the Judicial Department from the Executive and
Legislative Departments.
Appointment to the Supreme Court
26. The Supreme Court is composed of a Chief
Justice and 14 Associate Justices, who all shall
be appointed by the President from a list of at
least three nominees prepared by the JBC for
every vacancy, which appointments require no
confirmation by the Commission on
Appointments.
27. With reference to the Chief Justice, he or
she is appointed by the President as Chief
Justice, and the appointment is never in an
acting capacity.
28. The framers intended the position of Chief
Justice to be permanent, not one to be occupied
in an acting or temporary capacity.
Acting Chief Justice under the Judiciary
Act of 1948
29. Section 12 of the Judiciary Act of 1948 only
responds to a rare situation in which the new
Chief Justice is not yet appointed, or in which
the incumbent Chief Justice is unable to
perform the duties and powers of the office.
30. It is to be noted, however, that the Judiciary
Act was enacted because the Chief Justice
appointed under the 1935 Constitution was
subject to the confirmation of the Commission
on Appointments, and the confirmation process
might take longer than expected.
Chief Justice
31. The Chief Justice, as the head of the entire
Judiciary, performs functions absolutely
significant to the life of the nation.The lack of
any appointed occupant of the office of Chief
Justice harms the independence of the Judiciary.
32. The appointment of the next Chief Justice
by the incumbent President is preferable to
having the Associate Justice who is first in
precedence take over.
Mandamus
33. Mandamus shall issue when any tribunal,
corporation, board, officer or person unlawfully
neglects the performance of an act that the law
specifically enjoins as a duty resulting from an
office, trust, or station.
34. Mandamus is not available to direct the
exercise of a judgment or discretion in a
particular way.
35. For mandamus to lie, the following must be
complied with: (a) the plaintiff has a clear legal
right to the act demanded; (b) it must be the
duty of the defendant to perform the act,
because it is mandated by law; (c) the
defendant unlawfully neglects the performance
of the duty enjoined by law; (d) the act to be
performed is ministerial, not discretionary; and
(e) there is no appeal or any other plain,
speedy and adequate remedy in the ordinary
course of law.
Ministerial Act vs. Discretionary Act
36. A purely ministerial act or duty is one which
an officer or tribunal performs in a given state
of facts, in a prescribed manner, in obedience
to the mandate of a legal authority, without
regard to or the exercise of his own judgment
upon the propriety or impropriety of the act
done. The duty is ministerial only when the
discharge of the same requires neither the
exercise of official discretion or judgment.
37. A discretionary act or duty is one in which
the law imposes a duty upon a public officer
and gives the right to decide how or when the
duty shall be performed.
38. The duty of the JBC to submit a list of
nominees before the start of the Presidents
mandatory 90-day period to appoint
is ministerial, but its selections of the
candidates whose names will be in the list to be
submitted to the President lies within
the discretion of the JBC.
26. Case Summary
94
Jardeleza vs. Sereno (2014)
G.R. No. 213181 | 2014-08-19
Subject: The Supreme Court, in the exercise of
its Power of Supervision over the JBC, has
constitutional bases to assume jurisdiction over
the case; Remedy of Mandamus is not available
(JBCs duty to nominate is discretionary);
Remedy of Certiorari is available (under
expanded Power of Judicial Review); Unanimity
Rule of the JBC applies only when the moral
fitness of an applicant is put in issue; Uniformity
rule was improperly applied with respect to the
charge on Jardeleza's past handling of
government cases; Uniformity rule applies to
allegations of extra-marital affair and acts of
insider-trading; Availability of Due Process in
the Proceedings of the JBC; Under JBC rules, an
applicant has the right to be heard and to
answer the accusations against him; The
application of the unanimity rule on integrity
resulted in Jardelezas deprivation of his right to
due process; Need to Revisit JBCs Internal
Rules;
Facts:
Due to the imminent compulsory retirement of
Associate Supreme Court Justice Roberto Abad
on May 22, 2014, the Judicial and Bar Council
(JBC) announced the opening for application or
recommendation for the said vacated position.
The JBC received a letter from Dean Danilo
Concepcion of the University of the Philippines
nominating petitioner Francis H. Jardeleza,
incumbent Solicitor General of the Republic, for
the said position. Jardeleza was included in the
names of candidates, as well as in the schedule
of public interviews. Jardeleza was interviewed
by the JBC.
Jardeleza received telephone calls from
incumbent JBC member, Justice Aurora Lagman,
who informed him that during the meetings
held, Chief Justice Sereno, who served as JBC
ex-officio Chairperson, manifested that she
would be invoking Section 2, Rule 10 of JBC-
0094 against him. Jardeleza was then directed
to make himself available before the JBC on
June 30, 2014, during which he would be
informed of the objections to his integrity.
Jardeleza filed a letter-petition to the Supreme
Court (SC) praying that the Court, in the
exercise of its constitutional power of
supervision over the JBC, issue an order: (1)
directing the JBC to give him at least five (5)
working days written notice of any hearing of
the JBC to which he would be summoned; and
the said notice to contain the sworn
specifications of the charges against him by his
oppositors, and supporting witnesses, if any,
and copies of documents in support of the
charges; (2) allowing him to cross-examine his
oppositors and supporting witnesses, if any, to
be conducted in public (3) directing the JBC to
reset the hearing scheduled on June 30, 2014
to another date; and (4) directing the JBC to
disallow Chief Justice Sereno from participating
in the voting on June 30, 2014 for the position
vacated by Associate Justice Abad.
According to the JBC, Chief Justice Sereno
questioned Jardelezas ability to discharge the
duties of his office as shown in a confidential
legal memorandum over his handling of an
international arbitration case for the
government. Jardeleza was also informed that
Associate Justice Carpio appeared before the
JBC and disclosed confidential information
which, to Chief Justice Sereno, characterized his
(Jardeleza) integrity as dubious.
During the June 30, 2014 meeting, Jardeleza
was asked by Chief Justice Sereno if he wanted
to defend himself against the integrity issues
raised against him. He answered that he would
defend himself provided that due process would
be observed. Jardeleza requested the JBC to
defer its meeting considering that the Court en
banc would meet the next day to act on his
pending letter-petition. Jardeleza was thereafter
excused from the meeting.
However, later that same day, and apparently
denying Jardelezas request for deferment of
the proceedings, the JBC continued its
deliberations and proceeded to vote for the
nominees to be included in the shortlist. The
JBC released the subject shortlist of four (4)
nominees which included: Apolinario D.
Bruselas, Jr., Jose C. Reyes, Jr., Maria Gracia M.
Pulido Tan, and Reynaldo B. Daway. The
shortlist did not include Jardeleza.
A newspaper article was later published in the
online portal of the Philippine Daily Inquirer,
95
stating that the Courts Spokesman, Atty.
Theodore Te, revealed that there were actually
five nominees who made it to the JBC shortlist,
but one nominee could not be included because
of the invocation of Rule 10, Section 2 of the
JBC rules.
In its July 8, 2014 Resolution, the SC noted
Jardelezas letter-petition in view of the
transmittal of the JBC list of nominees to the
Office of the President, without prejudice to
any remedy available in law and the rules that
petitioner may still wish to pursue.
Hence, Jardeleza filed the present petition for
certiorari and mandamus under Rule 65 with
prayer for the issuance of a Temporary
Restraining Order (TRO), seeking to compel the
JBC to include him in the list of nominees for
Supreme Court Associate Justice, on the
grounds that the JBC and Chief Justice Sereno
acted in grave abuse of discretion amounting to
lack or excess of jurisdiction in excluding him,
despite having garnered a sufficient number of
votes to qualify for the position. Jardeleza
posited that, having secured the sufficient
number of votes (4 out of 6), it was ministerial
on the part of the JBC to include Jardeleza in the
shortlist.
For its part, the JBC explained that, as a general
rule, an applicant is included in the shortlist
when he or she obtains an affirmative vote of at
least a majority of all the members of the JBC.
When Section 2, Rule 10 of JBC-009, however, is
invoked because an applicants integrity is
challenged, a unanimous vote is required. Thus,
when Chief Justice Sereno invoked the said
provision, Jardeleza needed the affirmative vote
of all the JBC members to be included in the
shortlist. In the process, Chief Justice Serenos
vote against Jardeleza was not counted. Even
then, he needed the votes of the five (5)
remaining members. He only got four (4)
affirmative votes. In contrast, applicant
Reynaldo B. Daway, who got four (4) affirmative
votes, was included in the shortlist because his
integrity was not challenged. As to him, the
majority rule was considered applicable.
At issue is the correct application of Section 2,
Rule 10 JBC-009 and its effects, if any, on the
substantive rights of applicants.
Held:
I. Procedural Issues
The Supreme Court, in the exercise of its
Power of Supervision over the JBC, has
constitutional bases to assume
jurisdiction over the case
1. Section 8, Article VIII of the 1987
Constitution, which provides for the creation of
the JBC, states that: A Judicial and Bar Council
is hereby created under the supervision of the
Supreme Court...
2. Jurisprudence provides the definition and
scope of supervision. It is the power of
oversight, or the authority to see that
subordinate officers perform their duties.
It ensures that the laws and the rules governing
the conduct of a government entity are
observed and complied with. Supervising
officials see to it that rules are followed, but
they themselves do not lay down such rules,
nor do they have the discretion to modify or
replace them. If the rules are not observed,
they may order the work done or redone, but
only to conform to such rules. They may not
prescribe their own manner of execution of the
act. They have no discretion on this matter
except to see to it that the rules are followed.
3. The supervisory authority of the Court over
the JBC covers the overseeing of compliance
with its rules. In this case, Jardelezas principal
allegations in his petition merit the exercise of
this supervisory authority.
Remedy of Mandamus is not available
(JBCs duty to nominate is discretionary)
4. The Court agrees with the JBC that a writ of
mandamus is not available. Mandamus lies to
compel the performance, when refused, of a
ministerial duty, but not to compel the
performance of a discretionary duty. Mandamus
will not issue to control or review the exercise
of discretion of a public officer where the law
imposes upon said public officer the right and
duty to exercise his judgment in reference to
any matter in which he is required to act. It is
his judgment that is to be exercised and not
that of the court. There is no question that
96
theJBCs duty to nominate is discretionary and
it may not be compelled to do something.
Remedy of Certiorari is available (under
expanded Power of Judicial Review)
5. Under Section 1 of Rule 65, a writ of
certiorari is directed against a tribunal
exercising judicial or quasi-judicial
function. Judicial functions are exercised by a
body or officer clothed with authority to
determine what the law is and what the legal
rights of the parties are with respect to the
matter in controversy. Quasi-judicial function is
a term that applies to the action or discretion of
public administrative officers or bodies given
the authority to investigate facts or ascertain
the existence of facts, hold hearings, and draw
conclusions from them as a basis for their
official action using discretion of a judicial
nature.
6. Respondent JBC opposed the petition for
certiorari on the ground that, in the
performance of its function of recommending
appointees for the judiciary, the JBC does not
exercise judicial or quasi-judicial functions.
7. It has been judicially settled that a petition
for certiorari is a proper remedy to question the
act of any branch or instrumentality of the
government on the ground of grave abuse of
discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of
the government, even if the latter does not
exercise judicial, quasi-judicial or ministerial
functions.
8. In this case, Jardeleza cries that although he
earned a qualifying number of votes in the JBC,
it was negated by the invocation of the
unanimity rule on integrity in violation of his
right to due process guaranteed not only by the
Constitution but by the Councils own rules. For
said reason, the Court is of the position that it
can exercise the expanded judicial power of
review vested upon it by Section 1, Art VIII of
the 1987 Constitution.
II. Substantive Issues
Unanimity Rule of the JBC applies only
when the moral fitness of an applicant is
put in issue
9. The JBC has been tasked to screen aspiring
judges and justices, making certain that the
nominees submitted to the President are all
qualified and suitably best for appointment. In
this way, the appointing process itself is
shielded from the possibility of extending
judicial appointment to the undeserving and
mediocre and, more importantly, to the
ineligible or disqualified.
10. A set of uniform criteria had to be
established in the ascertainment of whether
one meets the minimum constitutional
qualifications and possesses qualities of mind
and heart expected of him and his office. The
JBC had put these criteria in writing, now in the
form of JBC-009. As a qualification, the term
integrity is taken to refer to a virtue, such
that integrity is the quality of persons
character.
11. Under Rule 2, Section 10 of JBC-009, a
higher voting requirement is absolute in cases
where the integrity of an applicant is
questioned. Simply put, when an integrity
question arises, the voting requirement for his
or her inclusion as a nominee to a judicial post
becomes unanimous instead of the majority
vote . Considering that JBC-009 employs the
term integrity as an essential qualification for
appointment, and its doubtful existence in a
person merits a higher hurdle to surpass (the
unanimous vote of all the members of the JBC),
the Court is of the safe conclusion that
integrity as used in the rules must be
interpreted uniformly. Hence, Section 2, Rule 10
of JBC-009 envisions only a situation where an
applicants moral fitness is challenged. It
follows then that the unanimity rule only
comes into operation when the moral character
of a person is put in issue. It finds no
application where the question is essentially
unrelated to an applicants moral uprightness.
Uniformity rule was improperly applied
with respect to the charge on Jardeleza's
past handling of government cases
12. The initial or original invocation of Section
2, Rule 10 of JBC-009 was grounded on
Jardelezas inability to discharge the duties of
his office as shown in a legal memorandum
related to Jardelezas manner of representing
97
the government in a legal dispute. This begets
the question: Does his adoption of a specific
legal strategy in the handling of a case bring
forth challenge against his moral character?
Does the unanimity rule apply in cases where
the main point of contention is the professional
judgment sans charges or implications of
immoral or corrupt behavior?
13. While Chief Justice Sereno claims that the
invocation of Section 2, Rule 10 of JBC-009 was
not borne out of a mere variance of legal
opinion but by an act of disloyalty committed
by Jardeleza in the handling of a case, the fact
remains that the basis for her invocation of the
rule was the disagreement in legal strategy
as expressed by a group of international
lawyers. The approach taken by Jardeleza in
that case was opposed to that preferred by the
legal team. For said reason, criticism was
hurled against his integrity. The invocation of
the unanimity rule on integrity traces its roots
to the exercise of his discretion as a lawyer and
nothing else. No connection was established
linking his choice of a legal strategy to a
treacherous intent to trounce upon the
countrys interests or to betray the
Constitution.
14. A lawyer has complete discretion on what
legal strategy to employ in a case entrusted to
him provided that he lives up to his duty to
serve his client with competence and diligence,
and that he exert his best efforts to protect the
interests of his client within the bounds of the
law. Consonantly, a lawyer is not an insurer of
victory for clients he represents. Stripped of a
clear showing of gross neglect, iniquity, or
immoral purpose, a strategy of a legal mind
remains a legal tactic acceptable to some and
deplorable to others. It has no direct bearing on
his moral choices.
15. The Court cannot consider Chief Justice
Sereno's invocation of Section 2, Rule 10 of JBC-
009 as conformably within the contemplation of
the rule. To fall under Section 2, Rule 10 of JBC-
009, there must be a showing that the act
complained of is, at the least, linked to the
moral character of the person and not to his
judgment as a professional. What this
disposition perceives, therefore, is the
inapplicability of Section 2, Rule 10 of JBC-009
to the original ground of its invocation.
Uniformity rule applies to allegations of
extra-marital affair and acts of insider-
trading
16. The minutes of the JBC meetings reveal
that during the June 30, 2014 meeting, not only
the question on his actuations in the handling
of a case was called for explanation by the
Chief Justice, but two other grounds as well
tending to show his lack of integrity: a
supposed extra-marital affair in the past and
alleged acts of insider trading. These grounds
were raised for the first time only during the
June 30, 2014 meeting. The inclusion of these
issues had its origin from newspaper reports
that the Chief Justice might raise issues of
immorality against Jardeleza. The Chief
Justice then deduced that the immorality
issue referred to by the media might have been
the incidents that could have transpired when
Jardeleza was still the General Counsel of San
Miguel Corporation.
17. Jurisprudence is replete with cases where a
lawyer who engages in extra-marital affairs is
deemed to have failed to adhere to the
exacting standards of morality and decency
which every member of the Judiciary is
expected to observe.
18. On the other hand, insider trading is an
offense that assaults the integrity of our vital
securities market. In its barest essence, insider
trading involves the trading of securities based
on knowledge of material information not
disclosed to the public at the time. Clearly, an
allegation of insider trading involves the
propensity of a person to engage in fraudulent
activities that may speak of his moral
character.
19. These two issues (extra-marital affair and
acts of insider-trading) can be properly
categorized as questions on integrity under
Section 2, Rule 10 of JBC-009. They fall within
the ambit of questions on integrity. Hence,
the unanimity rule may come into operation
as the subject provision is worded.
Availability of Due Process in the
Proceedings of the JBC
20. The JBC insists that it is not obliged to
98
afford Jardeleza the right to a hearing in the
fulfillment of its duty to recommend. The JBC,
as a body, is not required by law to hold
hearings on the qualifications of the nominees.
The process by which an objection is made
based on Section 2, Rule 10 of JBC-009 is not
judicial, quasi-judicial, or fact-finding, for it does
not aim to determine guilt or innocence akin to
a criminal or administrative offense but to
ascertain the fitness of an applicant vis--vis
the requirements for the position. Being sui
generis, the proceedings of the JBC do not
confer the rights insisted upon by Jardeleza.
21. While the facets of criminal and
administrative due process are not strictly
applicable to JBC proceedings, their peculiarity
is insufficient to justify the conclusion that due
process is not demandable. The fact that a
proceeding is sui generis and is impressed with
discretion, however, does not automatically
denigrate an applicants entitlement to due
process. It is well-established in jurisprudence
that disciplinary proceedings against lawyers
are sui generis in that they are neither purely
civil nor purely criminal; they involve
investigations by the Court into the conduct of
one of its officers, not the trial of an action or a
suit. In such posture, there can be no occasion
to speak of a complainant or a prosecutor.
22. The Court subscribes to the view that in
cases where an objection to an applicants
qualifications is raised, the observance of due
process neither negates nor renders illusory the
fulfillment of the duty of JBC to recommend.
This holding is not an encroachment on its
discretion in the nomination process. Actually,
its adherence to the precepts of due process
supports and enriches the exercise of its
discretion. When an applicant, who vehemently
denies the truth of the objections, is afforded
the chance to protest, the JBC is presented with
a clearer understanding of the situation it faces,
thereby guarding the body from making an
unsound and capricious assessment of
information brought before it. The JBC is not
expected to strictly apply the rules of evidence
in its assessment of an objection against an
applicant. Just the same, to hear the side of the
person challenged complies with the dictates of
fairness for the only test that an exercise of
discretion must surmount is that of soundness.
Under JBC rules, an applicant has the right
to be heard and to answer the accusations
against him
23. The JBC contends that Sections 3 and 4,
Rule 10 of JBC-009 are merely directory in
nature as can be gleaned from the use of the
word may. In short, the JBC has the discretion
to hold or not to hold a hearing when an
objection to an applicants integrity is raised
and that it may resort to other means to
accomplish its objective.
24. While the JBC may so rely on other
means such as character clearances,
testimonials, and discreet investigation to aid it
in forming a judgment of an applicants
qualifications, the Court cannot accept a
situation where JBC is given a full rein on the
application of a fundamental right whenever a
persons integrity is put to question. In such
cases, an attack on the person of the applicant
necessitates his right to explain himself.
25. The JBCs own rules convince the Court to
arrive at this conclusion. The subsequent
issuance of JBC-010unmistakably projects the
JBCs deference to the grave import of the right
of the applicant to be informed and corollary
thereto, the right to be heard. While JBC-010
does not articulate a procedure that entails a
trialtype hearing, it affords an applicant, who
faces any complaint or opposition, the right
to answer the accusations against him. This
constitutes the minimum requirements of due
process.
The application of the unanimity rule on
integrity resulted in Jardelezas
deprivation of his right to due process
26. Due process, as a constitutional precept,
does not always and in all situations require a
trial-type proceeding. Due process is satisfied
when a person is notified of the charge against
him and given an opportunity to explain or
defend himself.
27. Even as Jardeleza was verbally informed of
the invocation of Section 2, Rule 10 of JBC-009
against him and was later asked to explain
himself during the meeting, still Jardeleza was
deprived of his right to due process when,
contrary to the JBC rules (JBC-010 Rules), he
99
was neither formally informed of the questions
on his integrity nor was provided a reasonable
opportunity to prepare his defense.
28. What precisely set off the protest of lack of
due process was the circumstance of requiring
Jardeleza to appear before the Council and to
instantaneously provide those who are willing
to listen an intelligent defense. Was he given
the opportunity to do so? The answer is yes, in
the context of his physical presence during the
meeting. Was he given a reasonable chance to
muster a defense? No, because he was merely
asked to appear in a meeting where he would
be, right then and there, subjected to an
inquiry. It would all be too well to remember
that the allegations of his extra-marital affair
and acts of insider trading sprung up only
during the June 30, 2014 meeting. While the
said issues became the object of the JBC
discussion on June 16, 2014, Jardeleza was not
given the idea that he should prepare to affirm
or deny his past behavior. These circumstances
preclude the very idea of due process in which
the right to explain oneself is given, not to
ensnare by surprise, but to provide the person
a reasonable opportunity and sufficient time to
intelligently muster his response.
29. Jardeleza should have been included in the
shortlist submitted to the President for the
vacated position of Associate Justice Abad. This
consequence arose not from the
unconstitutionality of Section 2, Rule 10 of JBC-
009, per se, but from the violation by the JBC of
its own rules of procedure and the basic tenets
of due process.
30. In criminal and administrative cases, the
violation of a partys right to due process raises
a serious jurisdictional issue which cannot be
glossed over or disregarded at will. Where the
denial of the fundamental right of due process
is apparent, a decision rendered in disregard of
that right is void for lack of jurisdiction. This
rule may well be applied to the current situation
for an opposing view submits to an undue
relaxation of the Bill of Rights.
31. Indeed, the invocation of Section 2, Rule 10
of JBC-009 must be deemed to have never
come into operation in light of its erroneous
application on the original ground against
Jardelezas integrity. The Court upholds the
JBCs discretion in the selection of nominees,
but its application of the unanimity rule must
be applied in conjunction with Section 2, Rule
10 of JBC-010 being invoked by Jardeleza.
Having been able to secure four (4) out of six
(6) votes, the only conclusion left to propound
is that a majority of the members of the JBC,
nonetheless, found Jardeleza to be qualified for
the position of Associate Justice and this grants
him a rightful spot in the shortlist submitted to
the President.
Need to Revisit JBCs Internal Rules
32. It appears that the provision on the
unanimity rule is vague and unfair and,
therefore, can be misused or abused resulting
in the deprivation of an applicants right to due
process--
(a) the invocation of the unanimity rule on
integrity is effectively a veto power over the
collective will of a majority. This should be
clarified. Any assertion by a member after
voting seems to be unfair because it effectively
gives him or her a veto power over the
collective votes of the other members in view
of the unanimous requirement. While an
oppositor-member can recuse himself or
herself, still the probability of annulling the
majority vote of the Council is quite high.
(b) integrity as a ground has not been defined.
While the initial impression is that it refers to
the moral fiber of a candidate, it can be, as it
has been, used to mean other things. Not
having been defined or described, it is vague,
nebulous and confusing. It must be distinctly
specified and delineated.
(c) it should explicitly provide who can invoke it
as a ground against a candidate. Should it be
invoked only by an outsider as construed by the
respondent Executive Secretary or also by a
member?
(d) while the JBC vetting proceedings is "sui
generis" and need not be formal or trial type,
they must meet the minimum requirements of
due process. As always, an applicant should be
given a reasonable opportunity and time to be
heard on the charges against him or her, if
there are any.
100

33. It is up to the JBC to fine-tune the rules
considering the peculiar nature of its function. It
need not be stressed that the rules to be
adopted should be fair, reasonable,
unambiguous and consistent with the minimum
requirements of due process.
27. Case Summary
David vs. Arroyo
G.R. No. 171396 | 2006-05-03
Subject:
Moot and Academic, Locus Standi, Political
Question(Calling-out Power), Emergency Powers
of the President, Facial Challenge (Overbreadth
Doctrine), Facial Challenge (Vagueness),
Section 17, Article VII (Take Care Power or
Control Power of the President), Section 17,
Article XII (Take Over Power of the President),
'As Applied' Challenge,Acts of Terrorism, Right
to Peacably Assemble,
Facts:
On February 24, 2006, as the nation celebrated
the 20th Anniversary of the Edsa People Power
I, President Arroyo issued Presidential
Proclamation No. 1017 (PP 1017) 'declaring a
state of national emergency'. On the same day,
the President also issued General Order No. 5
implementing PP 1017 and directing the AFP
and PNP to take appropriate actions 'to
suppress and prevent acts of terrorism and
lawless violence'
Thereafter, during the dispersal of the rallyists
along EDSA, police arrested (without warrant)
Randolf S. David, a UP professor and newspaper
columnist, and Ronald Llamas, president of
party-list Akbayan.
Also, in the early morning of February 25,
2006,operatives of the Criminal Investigation
and Detection Group (CIDG) of the PNP,on the
basis of PP 1017 and G.O. No. 5, raided
the Daily Tribune offices in Manila.
One week after the issuance of PP 1017 and GO
No. 5, President Arroyo issued Proclamation No.
1021 declaring that the state of national
emergency has ceased to exist.
Petitions were filed challenging the
constitutionality of and G.O. No. 5 and PP 1017.
The factual basis cited by the Arroyo camp for
the executive issuances was the alleged
existence of plot attempts from the political
opposition and NPA to unseat or assassinate
President Arroyo. The plot attempts were a
clear and present danger that justified
the orders.
Held:
Moot and Academic
1. A moot and academic case is one that
ceases to present a justiciable
controversy by virtue of supervening
events so that a declaration thereon
would be of no practical use or value.
2. As a general rule, courts decline
jurisdiction over cases rendered moot.
However, courts will decide cases,
otherwise moot and academic, in the
following situations:
(i) there is a grave violation of the
Constitution;
(ii) the exceptional character of the
situation and the paramount
public interest is involved;
(iii) when constitutional issue raised
requires formulation of controlling
principles to guide the bench, the
bar, and the public;
(iv the case is capable of repetition
yet evading review.
3. President Arroyo's issuance of PP 1021
did not render the present petitions moot
and academic. During the eight days
that PP 1017 was operative, the police
officers committed illegal acts in
implementing it. Moreover, all the above
exceptions are present to justify the
Court's assumption of jurisdiction over
the petitions.
Locus Standi
4. In public suits, our courts adopt
the 'direct injury' test which states
that the person who impugns the validity
101
 of a statute must have 'a personal and
substantial interest in the case such that
he has sustained, or will sustain direct
injury as a result.
5. However, being a mere procedural
technicality, the requirement of locus
standi maybe waived. Thus, even where
the petitioners have failed to show direct
injury, they have been allowed to sue
under the principle of 'transcendental
importance.'
6. Petitioners David, Llamas and the
Tribune suffered 'direct injury' resulting
from the 'illegal arrest' and 'unlawful
search' committed by police operatives
pursuant to PP 1017.
10. As to how the Court may inquire into
the President's exercise of
power, the standard is not correctness,
but arbitrariness. The test is that 'judicial
inquiry can go no further than to satisfy
the Court not that the President's
decision is correct,' but that 'the
President did not
act arbitrarily.'(citing Lansang v. Garcia)
11. To show arbitrariness, it must be shown
that the President's decision is totally
bereft of factual basis'. If this is not
proven, the Court cannot thereafter
undertake an independent investigation
beyond the pleadings.' (citing IBP v
Zamora)

7. KMU's assertion that PP 1017 and G.O.
No. 5 violated its right to peaceful
assembly may be deemed sufficient to
give it legal standing. Organizations may
be granted standing to assert the rights
of their members. The courts took
judicial notice of the announcement by
the Office of the President banning all
rallies and canceling all permits for
public assemblies following the issuance
of PP 1017 and G.O. No. 5.
12. Petitioners failed to show that President
Arroyo's exercise of the calling-out
power, by issuing PP 1017, is totally
bereft of factual basis. The government
presented reports of events leading to
the issuance PP 1017 (i.e. escape and
threats of Magdalo group, defections in
military, etc.) which was not
contradicted by petitioners. Hence, the
President was justified in issuing PP 1017
calling for military aid.

8. The national officers of the Integrated
Bar of the Philippines (IBP) have no legal
standing, having no direct or potential
injury which the IBP as an institution or
its members may suffer as
consequence of the issuance of PP No.
1017 and G.O. No.5. The mere invocation
by the IBP of its duty to preserve the rule
of law is too general an interest.
However, in view of the transcendental
importance of the issue, the Court
vested them with locus standi.
Political Question, Calling-Out Power
9. While the President's 'calling-out' power
is a discretionary power solely vested in
his wisdom, 'this does not prevent an
examination of whether such power was
exercised within permissible
constitutional limits or whether it was
exercised in a manner constituting grave
abuse of discretion.'
Facial Challenge (Over breadth Doctrine)
13. The over breadth doctrine is an
analytical tool developed for testing 'on
a their faces' statutes in free speech
cases. PP 1017 is not primarily directed
to speech or even speech-related
conduct. It is actually a call upon the AFP
to prevent or suppress all forms of
lawless violence.
14. Claims of facial over breadth are
entertained in cases involving statutes
which, by their terms, seek to regulate
only 'spoken words' and 'over breadth
claims have been curtailed when invoked
against ordinary criminal laws that are
sought to be applied to protected
conduct.'
Facial Challenge (Vagueness)
102
 15. Related to the 'over breadth' doctrine is
the 'void for vagueness doctrine' which
holds that 'a law is facially invalid if men
of common intelligence must necessarily
guess at its meaning and differ as to its
application.' It is subject to the same
principles governing over breadth
doctrine. For one, it is also an analytical
tool for testing 'on their faces' statutes in
free speech cases. And like over breadth,
it is said that a litigant may challenge a
statute on its face only if it is vague in all
its possible applications.
Calling Out Power (First Provision of PP
1017)
16. Section 18, Article VII of the
Constitution grants the President, as
Commander-in-Chief, a 'sequence' of
graduated powers. From the most to the
least benign, these are: the calling-out
power, the power to suspend the
privilege of the writ of habeas corpus,
and the power to declare Martial Law.
Citing IBP v. Zamora, the Court ruled
that the only criterion for the exercise of
the calling-out power is that 'whenever
it becomes necessary,' the President
may call the armed forces 'to prevent
or suppress lawless violence,
invasion or rebellion.'
17. Considering the circumstances then
prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her
Office's vast intelligence network, she is
in the best position to determine the
actual condition of the country.
18. There is a distinction between the
President's authority to declare a 'state
of rebellion' and the authority to
proclaim a? state of national
emergency?. In declaring a state of
national emergency, President Arroyo did
not only rely on Section 18, Article VII of
the Constitution, a provision calling on
the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also
relied on Section 17, Article XII, a
provision on the State's extraordinary
power to take over privately-owned
public utility and business affected with
public interest.
19. PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President
Arroyo's calling-out power. As such, it
cannot be used to justify acts that only
under a valid declaration of Martial Law
can be done. specifically, (a) arrests and
seizures without judicial warrants; (b)
ban on public assemblies; (c) take-over
of news media and agencies and press
censorship; and (d) issuance of
Presidential Decrees, are powers which
can be exercised by the President as
Commander-in-Chief only where there is
a valid declaration of Martial Law or
suspension of the writ of habeas corpus.
'Take Care' Power (Second Provision of PP
1017)
20. The second provision pertains to the
power of the President to ensure that the
laws be faithfully executed. This is based
on Section 17, Article VII of the
Constitution.
21. PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to
promulgate 'decrees.' Legislative power
is peculiarly within the province of the
Legislature. Neither Martial Law nor a
state of rebellion nor a state of
emergency can justify President Arroyo's
exercise of legislative power by issuing
decrees. Presidential Decrees are laws
which are of the same category and
binding force as statutes because they
were issued by then President Marcos in
the exercise of his legislative power
during the period of Martial Law under
the 1973 Constitution.
22. President Arroyo has no authority to
enact decrees. It follows that these
decrees are void and, therefore, cannot
be enforced. With respect to 'laws,' she
cannot call the military to enforce or
implement certain laws, such as customs
laws, laws governing family and property
relations, laws on obligations and
contracts and the like. She can only
order the military, under PP 1017, to
103
 enforce laws pertinent to its duty to
suppress lawless violence.
Take Over Power (Third Provision of PP
1017)
23. PP 1017 is unconstitutional insofar as it
grants the President, during a ?state of
emergency?, authority to temporarily
take over or direct the operation of any
privately-owned public utility or business
affected with public interest, without
authority or delegation from Congress.
24. A distinction must be drawn between
the President's authority to declare 'a
state of national emergency' and to
exercise emergency powers. While the
President alone can declare a state of
national emergency, however, the
exercise of emergency powers , such
as the taking over of privately owned
public utility or business affected with
public interest, requires a delegation
from Congress. The President has no
absolute authority to exercise allthe
powers of the State under Section 17,
Article VII in the absence of an
emergency powers act passed by
Congress.
25. Congress may grant emergency powers
to the President, subject to certain
conditions, thus:
(1) There must be a war or other
emergency.
(2) The delegation must be for a
limited period only.
(3) The delegation must be
subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must
be exercised to carry out a
national policy declared by
Congress.
'As Applied' Challenge
26. Courts do not declare statutes invalid
merely because they may afford an
opportunity for abuse in the manner of
application. The validity of a statute or
ordinance is to be determined from its
general purpose and its efficiency to
accomplish the end desired, not from its
effects in a particular case.
'Acts of Terrorism'
27. G.O. No. 5 mandates the AFP and the
PNP to immediately carry out the
'necessary and appropriate actions and
measures to suppress and prevent acts
of terrorism and lawless violence.'
28. The Court declares that the 'acts of
terrorism' portion of G.O. No. 5 is
unconstitutional. Since there is no law
defining 'acts of terrorism,' it is President
Arroyo alone, under G.O. No. 5, who has
the discretion to determine what acts
constitute terrorism. Consequently, there
can be indiscriminate arrest without
warrants, breaking into offices and
residences, taking over the media
enterprises. These acts go far beyond
the calling-out power of the President.
Yet these can be effected in the name of
G.O. No. 5 under the guise of
suppressing acts of terrorism.
Right to Peaceably Assemble
29. David's warrantless arrest was
unjustified. David, et al. were arrested
while they were exercising their right to
peaceful assembly. They were not
committing any crime, neither was there
a showing of a clear and present danger
that warranted the limitation of that
right. As can be gleaned from
circumstances, the charges of inciting to
sedition and violation of BP 880 were
mere afterthought.
30. The wholesale cancellation of all
permits to rally is a blatant disregard of
the principle that 'freedom of assembly
is not to be limited, much less denied,
except on a showing of a clear and
present danger of a substantive evil that
the State has a right to prevent.'
31. Moreover, under BP 880, the authority
to regulate assemblies and rallies is
lodged with the local government units.
They have the power to issue permits
and to revoke such permits after due
notice and hearing on the determination
of the presence of clear and present
104
 danger. Here, petitioners were not even
notified and heard on the revocation of
their permits.
28. Case Summary
Bayan vs Zamora (2000)
G.R. No. 138570 | 2000-10-10
Subject:
Locus Standi; Visiting Forces Agreement (VFA);
Senate Concurrence on Treaties (Section 21,
Article VII vs Section 25, Article XVIII); Treaty
(Ratification; Concurrence of Senate); Pacta
Sunt Servanda; Statutory Construction (Special
over General; Ubi Lex Non Distinguit; Use of
disjunctive or)
Facts:
On March 14, 1947, the Philippines (RP) and the
United States of America (US) forged a Military
Bases Agreement which formalized the use of
installations in the Philippine territory by United
States military personnel.
The RP-US Military Bases Agreement expired in
1991 without having been renewed.
Notwithstanding, the defense and security
relationship between the Philippines and the US
continued pursuant to a Mutual Defense Treaty
entered into on August 30, 1951.
In 1997, negotiations began between the RP
and US for a Visiting Forces Agreement (VFA).
President Ramos approved the VFA, which was
respectively signed by Foreign Affairs Secretary
Siazon and US Ambassador Thomas Hubbard on
February 10, 1998.
Subsequently, President Estrada ratified the
VFA and officially transmitted to the Senate of
the Philippines the Instrument of Ratification for
concurrence pursuant to Section 21, Article VII
of the 1987 Constitution. The Senate, in turn,
referred the VFA to its Committee on Foreign
Relations and Committee on National Defense
and Security for joint hearing.
Thereafter, Senate Resolution No. 443 was
approved by the Senate by a two-thirds (2/3)
vote of its members. It became re-numbered as
Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into
force after an Exchange of Notes between
Foreign Affairs Secretary Siazon and US
Ambassador Hubbard.
The VFA provides for the mechanism for
regulating the circumstances and conditions
under which US Armed Forces and defense
personnel may be present in the Philippines.
Petitioners - as legislators, non-governmental
organizations, citizens and taxpayers - assail
the constitutionality of the VFA and impute
grave abuse of discretion in the ratification of
the agreement.
Held:
Locus Standi
1. A party bringing a suit challenging the
constitutionality of a law, act, or statute must
show "not only that the law is invalid, but also
that he has sustained or in is in immediate, or
imminent danger of sustaining some direct
injury as a result of its enforcement, and not
merely that he suffers thereby in some
indefinite way." He must show that he has
been, or is about to be, denied some right or
privilege to which he is lawfully entitled, or that
he is about to be subjected to some burdens or
penalties by reason of the statute complained
of.
2. Petitioners failed to show that they have
sustained, or are in danger of sustaining any
direct injury as a result of the enforcement of
the VFA.
3. Inasmuch as no public funds raised by
taxation are involved in this case, and in the
absence of any allegation by petitioners that
public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no
legal standing to assail the legality of the VFA.
4. Petitioners-legislators, as members of
Congress, do not possess the requisite locus
standi to maintain the present suit, in the
absence of a clear showing of any direct injury
to their person or to the institution to which
they belong
105

5. Similarly, the IBP lacks the legal capacity to
bring this suit in the absence of a board
resolution from its Board of Governors
authorizing its National President to commence
the present action.
6. Notwithstanding, in view of the paramount
importance and the constitutional significance
of the issues raised in the petitions, the Court,
in the exercise of its sound discretion, brushes
aside the procedural barrier and takes
cognizance of the petitions. In cases of
transcendental importance, the Court may relax
the standing requirements and allow a suit to
prosper even where there is no direct injury to
the party claiming the right of judicial review.
Senate Concurrence on Treaties (Section
21, Article VII vs Section 25, Article XVIII)
7. Petitioners argue that Section 25, Article XVIII
is applicable considering that the VFA has for its
subject the presence of foreign military troops
in the Philippines. Respondents maintain that
Section 21, Article VII should apply inasmuch as
the VFA is not a basing arrangement but an
agreement which involves merely the
temporary visits of US personnel engaged in
joint military exercises.
8. Section 21, Article VII deals with treatise
or international agreements in general, in which
case, theconcurrence of at least two-thirds
(2/3) of all the Members of the Senate is
required to make the subject treaty, or
international agreement, valid and binding on
the part of the Philippines. This provision lays
down the general rule on treatise or
international agreements and applies to any
form of treaty with a wide variety of
subject matter, such as, but not limited to,
extradition or tax treatise or those economic in
nature. All treaties or international agreements
entered into by the Philippines, regardless of
subject matter, coverage, or particular
designation or appellation, requires the
concurrence of the Senate to be valid and
effective.
9. In contrast, Section 25, Article XVIII is a
special provision that applies to treaties
which involve the presence of foreign
military bases, troops or facilities in the
Philippines. Under this provision,
theconcurrence of the Senate is only one of the
requisites to render compliance with the
constitutional requirements and to consider the
agreement binding on the Philippines. Section
25, Article XVIII further requires that "foreign
military bases, troops, or facilities" may be
allowed in the Philippines only by virtue of a
treaty duly concurred in by the Senate, ratified
by a majority of the votes cast in a
national referendum held for that purpose
if so required by Congress, and
recognized as such by the other
contracting state.
10. The VFA is an agreement which defines the
treatment of United States troops and
personnel visiting the Philippines. It provides for
the guidelines to govern such visits of military
personnel, and further defines the rights of the
United States and the Philippine government in
the matter of criminal jurisdiction, movement of
vessel and aircraft, importation and exportation
of equipment, materials and supplies.
11. Section 25, Article XVIII, which
specifically deals with treaties involving foreign
military bases, troops, or facilities, should
apply in the instant case. To a certain extent
and in a limited sense, however, the provisions
ofsection 21, Article VII will find applicability
with regard to the issue and for the sole
purpose of determining the number of votes
required to obtain the valid concurrence of the
Senate.
Statutory Construction (Special over
General)
12. A basic principle of statutory construction
mandates that general legislation must give
way to a special legislation on the same
subject, and generally be so interpreted as to
embrace only cases in which the special
provisions are not applicable, and that where
two statutes are of equal theoretical application
to a particular case, the one designed therefor
specially should prevail. Lex specialis derogat
generali.
Statutory Construction (Ubi lex non
distinguit nec nos distinguire debemos)
13. Section 25, Article XVIII does not require
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foreign troops or facilities to be stationed or
placed permanently in the Philippines. It is
specious to argue that Section 25, Article XVIII
is inapplicable to mere transient agreements
Since the Constitution makes no distinction
between "transient' and "permanent".
Statutory Construction (use of the
disjunctive or)
14. We do not subscribe to the argument that
Section 25, Article XVIII is not controlling since
no foreign military bases, but merely foreign
troops and facilities, are involved in the VFA.
15. The clause does not refer to "foreign
military bases, troops, or facilities" collectively
but treats them as separate and independent
subjects. The use of comma and the disjunctive
word "or" clearly signifies disassociation and
independence of one thing from the others
included in the enumeration, such that, the
provision contemplates three different
situations - a military treaty the subject of
which could be either (a) foreign bases, (b)
foreigntroops, or (c) foreign facilities - any of
the three standing alone places it under the
coverage of Section 25, Article XVIII
Compliance with Section 25, Article XVIII
16. Section 25, Article XVIII disallows foreign
military bases, troops, or facilities in the
country, unless the following conditions are
sufficiently met, viz: (a) it must be under
a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so
required by congress, ratified by a majority of
the votes cast by the people in a national
referendum; and (c) recognized as a marked compliance with the mandate of the
treaty by the other contracting state.
2/3 Vote
17. The "concurrence requirement" under
Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article
VII which requires that concurrence of a treaty,
or international agreement, be made by a two
-thirds vote of all the members of the Senate.
Indeed, Section 25, Article XVIII must not be
treated in isolation to section 21, Article, VII.
18. The Senate is composed of 24 senators. The
two-thirds requirement means that no less
than 16 votes is necessary to ratify the VFA.
Recognized as a Treaty by other
contracting state
19. The phrase "recognized as a treaty"
means that the other contracting
party accepts or acknowledges the
agreement as a treaty. To require the other
contracting state (USA) to submit the VFA to the
United States Senate for concurrence pursuant
to its Constitution is to accord strict meaning to
the phrase.
20. The words used in the Constitution are to be
given their ordinary meaning except where
technical terms are employed, in which case
the significance thus attached to them prevails
21. It is inconsequential whether the United
States treats the VFA only as an executive
agreement because, under international law,
there is no difference between treaties and
executive agreements in their binding effect
upon states concerned, as long as the
negotiating functionaries have remained within
their powers. International law continues to
make no distinction between treaties and
executive agreements: they are equally
binding obligations upon nations. To be sure, as
long as the VFA possesses the elements of an
agreement under international law, the said
agreement is to be taken equally as a treaty.
22. For as long as the United States of America
accepts or acknowledges the VFA as a treaty,
and binds itself further to comply with its
obligations under the treaty, there is indeed
Constitution.
Treaty
23. A treaty, as defined by the Vienna
Convention on the Law of Treaties, is "an
international instrument concluded between
States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related
instruments, and whatever its particular
designation.
24. There are many other terms used for a
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treaty or international agreement, some of
which are: act, protocol, agreement, compromis
d' arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute,
charter and modus vivendi. The names or titles
of international agreements included under the
general term treaty have little or no legal
significance and they furnish little more than
mere description
Ratification of Treaty
25. Ratification is generally held to be an
executive act, undertaken by the head of the
state or of the government, as the case may
be, through which the formal acceptance of the
treaty is proclaimed.
26. A State may provide in its domestic
legislation the process of ratification of a treaty.
The consent of the State to be bound by a
treaty is expressed by ratification when: (a) the
treaty provides for such ratification, (b) it is
otherwise established that the negotiating
States agreed that ratification should be
required, (c) the representative of the State has
signed the treaty subject to ratification, or (d)
the intention of the State to sign the treaty
subject to ratification appears from the full
powers of its representative, or was expressed
during the negotiation
27. In the Philippine jurisdiction, the power to
ratify is vested in the President and not, as
commonly believed, in the legislature. The role
of the Senate is limited only to giving or
withholding its consent, or concurrence,
to the ratification.
28. In the Philippine jurisdiction, we have
recognized the binding effect of executive
agreements even without the concurrence of
the Senate or Congress.
Political Question (Concurrence of Senate)
29. The role of the Senate in relation to treaties
is essentially legislative in character. The
Senate, as an independent body possessed of
its own erudite mind, has the prerogative to
either accept or reject the proposed agreement,
and whatever action it takes in the exercise of
its wide latitude of discretion, pertains to the
wisdom rather than the legality of the act.
Pacta sunt servanda
30. With the ratification of the VFA, which is
equivalent to final acceptance, and with the
exchange of notes between the Philippines and
the United States of America, it now becomes
obligatory and incumbent on our part, under
the principles of international law, to be bound
by the terms of the agreement.
31. Article 13 of the Declaration of Rights
and Duties of States adopted by the
International Law Commission in 1949 provides:
"Every State has the duty to carry out in good
faith its obligations arising from treaties and
other sources of international law, and it may
not invoke provisions in its constitution or its
laws as an excuse for failure to perform this
duty."
32. Article 26 of the convention which
provides that "Every treaty in force is binding
upon the parties to it and must be performed
by them in good faith." This is known as the
principle of pacta sunt servanda.
29. Case Summary
Lacson vs. Perez (2001)
G.R. No. 147780 | 2001-05-10
Subject: Petitions have become moot; Petition
for prohibition and mandamus are not the
proper remedies against a warrantless arrest;
(Lacson group): Petitions for prohibition and
habeas corpus are premature since no criminal
charges have been filed and any fear of
unlawful restraint is merely speculative;
(Santiago petition): Mandamus will not issue
unless the right to relief is clear at the time of
the award; (Lumbao petition): Declaration of a
state of rebellion is the domain of the President,
in exercise of Commander in Chief powers; (LDP
Petition): LDP not a real party in interest since,
being a juridical person, it is not subject to
arrest
Facts:
On May 1, 2001, President Macapagal-Arroyo,
faced by an "angry and violent mob armed with
explosives, firearms, bladed weapons, clubs,
stones and other deadly weapons" assaulting
and attempting to break into Malacaang,
108
issued Proclamation No. 38 declaring that there
was a state of rebellion in the National Capital
Region. She likewise issued General Order No.
1 directing the Armed Forces of the Philippines
and the Philippine National Police to suppress
the rebellion in the National Capital Region.
Warrantless arrests of several alleged leaders
and promoters of the "rebellion" were
thereafter effected.
Thereafter, the four present petitions( for
prohibition, injunction, mandamus, and habeas
corpus) were filed before the Supreme Court.
All the petitions assail the declaration of a state
of rebellion by President Arroyo and the
warrantless arrests allegedly effected by virtue
thereof, as having no basis both in fact an in
law.
As to petitioner's claim that the proclamation of
a "state of rebellion" is being used by the
authorities to justify warrantless arrests, the
Secretary of Justice Hernando Perez denies that
it has issued a particular order to arrest specific
persons in connection with the "rebellion. He
states that what is extant are general
instructions to law enforcement officers and
military agencies to implement Proclamation
No. 38. Indeed
Held:
Petitions have become moot
1. Significantly, on May 6, 2001, President
Macapagal-Arroyo ordered the lifting of the
declaration of a "state of rebellion" in Metro
Manila. Accordingly, the instant petitions have
been rendered moot and academic.
Petition for prohibition and mandamus are
not the proper remedies against a
warrantless arrest
2. In quelling or suppressing the rebellion, the
authorities may only resort to warrantless
arrests of persons suspected of rebellion, as
provided under Section 5, Rule 113 of the Rules
of Court, if the circumstances so warrant. The
warrantless arrest feared by petitioners is not
based on the declaration of a "state of
rebellion."
3. Moreover, petitioners' contention that they
are under imminent danger of being arrested
without warrant do not justify their resort to the
extraordinary remedies of mandamus and
prohibition, since an individual subjected to
warrantless arrest is not without adequate
remedies in the ordinary course of law. Such an
individual may ask for a preliminary
investigation under Rule 112 of the Rules of
court, where he may adduce evidence in his
defense, or he may submit himself to inquest
proceedings to determine whether or not he
should remain under custody and
correspondingly be charged in court. Further, a
person subject of a warrantless arrest must be
delivered to the proper judicial authorities
within the periods provided in Article 125 of the
Revised Penal Code, otherwise the arresting
officer could be held liable for delay in the
delivery of detained persons. Should the
detention be without legal ground, the person
arrested can charge the arresting officer with
arbitrary detention. All this is without prejudice
to his filing an action for damages against the
arresting officer under Article 32 of the Civil
Code. Verily, petitioners have a surfeit of other
remedies which they can avail themselves of,
thereby making the prayer for prohibition and
mandamus improper at this time (Sections 2
and 3, Rule 65, Rules of Court).
(Lacson group): Petitions for prohibition
and habeas corpus are premature since no
criminal charges have been filed and any
fear of unlawful restraint is merely
speculative
4. In connection with their alleged impending
warrantless arrest, petitioners Lacson, Aquino,
and Mancao pray that the "appropriate court
before whom the informations against
petitioners are filed be directed to desist from
arraigning and proceeding with the trial of the
case, until the instant petition is finally
resolved." This relief is clearly premature
considering that as of this date, no complaints
or charges have been filed against any of the
petitioners for any crime. And in the event that
the same are later filed, this court cannot
enjoin criminal prosecution conducted in
accordance with the Rules of Court, for by that
time any arrest would have been in pursuance
of a duly issued warrant.
5. As regards petitioner's prayer that the hold
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departure orders issued against them be
declared null and void ab initio, it is to be noted
that petitioners are not directly assailing the
validity of the subject hold departure orders in
their petition. They are not even expressing
intention to leave the country in the near
future. The prayer to set aside the same must
be made in proper proceedings initiated for that
purpose.
6. Anent petitioner's allegations ex abundante
ad cautelam in support of their application for
the issuance of a writ of habeas corpus, it is
manifest that the writ is not called for since its
purpose is to relieve petitioners from unlawful
restraint , a matter which remains
speculative up to this very day.
(Santiago petition): Mandamus will not
issue unless the right to relief is clear at
the time of the award
7. The petition is denominated as one for
mandamus. It is basic in matters relating to
petitions for mandamus that the legal right of
the petitioner to the performance of a particular
act which is sought to be compelled must be
clear and complete. Mandamus will not issue
unless the right to relief is clear at the time of
the award. Up to the present time, petitioner
Defensor-Santiago has not shown that she is in
imminent danger of being arrested without a
warrant. In point of fact, the authorities have
categorically stated that petitioner will not be
arrested without a warrant.
(Lumbao petition): Declaration of a state
of rebellion is the domain of the
President, in exercise of Commander in
Chief powers
8. Petitioner Lumbao, leader of the People's
Movement against Poverty (PMAP) argues that
the declaration of a "state of rebellion" is
violative of the doctrine of separation of
powers, being an encroachment on the domain
of the judiciary which has the constitutional
prerogative to "determine or interpret" what
took place on May 1, 2001, and that the
declaration of a state of rebellion cannot be an
exception to the general rule on the allocation
of the governmental powers.
9. Section 18, Article VII of the Constitution
expressly provides that "[t]he President shall be
the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes
necessary, he may call out such armed forces
to prevent or suppress lawless violence,
invasion or rebellion..."
10. The factual necessity of calling out the
armed forces is not easily quantifiable and
cannot be objectively established since matters
considered for satisfying the same is a
combination of several factors which are not
always accessible to the courts. Besides
the absence of testual standards that the court
may use to judge necessity, information
necessary to arrive at such judgment might
also prove unmanageable for the courts.
Certain pertinent information necessary to
arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent
information might be difficult to verify, or
wholly unavailable to the courts. In many
instances, the evidence upon which the
President might decide that there is a need to
call out the armed forces may be of a nature
not constituting technical proof. On the other
hand, the President as Commander-in-Chief has
a vast intelligence network to gather
information, some of which may be classified as
highly confidential or affecting the security of
the state. In the exercise of the power to call,
on-the-spot decisions may be imperatively
necessary in emergency situations to avert
great loss of human lives and mass destruction
of property. (see IBP vs. Zamora)
11. The Court, in a proper case, may look into
the sufficiency of the factual basis of the
exercise of this power. However, this is no
longer feasible at this time, Proclamation No. 38
having been lifted.
(LDP Petition): LDP not a real party in
interest since, being a juridical person, it
is not subject to arrest
12. Petitioner Laban ng Demoktratikong
Pilipino is not a real party-in-interest. The rule
requires that a party must show a personal
stake in the outcome of the case or an injury to
himself that can be redressed by a favorable
decision so as to warrant an invocation of the
court's jurisdiction and to justify the exercise of
the court's remedial powers in his behalf. Here,
110
petitioner has not demonstrated any injury to
itself which would justify resort to the
Court. Petitioner is a juridical person not subject
to arrest. Thus, it cannot claim to be threatened
by a warrantless arrest. Nor is it alleged that its
leaders, members, and supporters are being
threatened with warrantless arrest and
detention for the crime of rebellion. Every
action must be brought in the name of the
party whose legal right has been invaded or
infringed, or whose legal right is under
imminent threat of invasion or infringement.
13. At best, the instant petition may be
considered as an action for declaratory relief,
petitioner claiming that its right to freedom of
expression and freedom of assembly is affected
by the declaration of a "state of rebellion" and
that said proclamation is invalid for being
contrary to the Constitution. However, to
consider the petition as one for declaratory
relief affords little comfort to petitioner,
the Supreme Court not having jurisdiction in the
first instance over such a petition.
30. Case Summary
Sanlakas vs Executive Secetary Reyes
(2004)
G.R. No. 159085 | 2004-02-03
Subject:
Locus Standi, Calling out power, Declaration of
state of rebellion
Facts:
In the wee hours of July 27, 2003, some three
hundred junior officers and enlisted men of the
Armed Forces of the Philippines (AFP) stormed
into the Oakwood Premiere apartments in
Makati City. Bewailing the corruption in the AFP,
the soldiers demanded, among other things,
the resignation of the President (Arroyo), the
Secretary of Defense and the Chief of the
Philippine National Police (PNP).
In the wake of the Oakwood occupation, the
President issued later in the day Proclamation
No. 427 and General Order No. 4, both
declaring "a state of rebellion" and calling out
the Armed Forces to suppress the rebellion.
By the evening of July 27, 2003, the Oakwood
occupation had ended. After hours-long
negotiations, the soldiers agreed to return to
barracks. The President, however, did not
immediately lift the declaration of a state of
rebellion and did so only on August 1, 2003,
through Proclamation No. 435.
In the interim, several petitions were filed
before this Court challenging the validity of
Proclamation No. 427 and General Order No. 4.
Petioners (including members of Congress and
party-list organizations like Sanlakas, Partido ng
Manggagawa , and SJS Society) pose similar
contentions questioning the authority of the
President to declare a state of rebellion in the
exercise of the calling out power granted
under Section 18, Article VII of the Constitution.
On the other hand, the Solicitor General argues
that the petitions have been rendered moot by
the lifting of the declaration. The Solicitor
General likewise questions the standing of the
petitioners to bring suit.
Held:
Moot and Academic (Exceptions)
1. The issuance of Proclamation No. 435,
declaring that the state of rebellion has ceased
to exist, has rendered the case moot.
2. As a rule, courts do not adjudicate moot
cases, judicial power being limited to the
determination of "actual controversies.
3. By way of exception, courts will decide a
question, otherwise moot, if it is "capable of
repetition yet evading review."
Case in point, in 2001, the President
similarly issued a declaration of state of
rebellion only to recall it five days later.
The hasty recall prevented the Court from
acting on the petitions filed in the
meantime questioning the validity of the
declaration. (see Lacson vs Perez)
Locus Standi
4. "Legal standing" or locus standi has been
111
defined as a personal and substantial interest in
the case such that the party has sustained or
will sustain direct injury as a result of the
governmental act that is being challenged.
5. Only petitioners Representative Suplico et al.
and Senator Pimentel, as Members of Congress,
have standing to challenge the subject
issuances.
To the extent the powers of Congress are
impaired, so is the power of each member
thereof. An act of the Executive which injures
the institution of Congress causes a derivative
but nonetheless substantial injury, which can
be questioned by a member of Congress. In
such a case, any member of Congress can have
a resort to the courts. (citing Philconsa vs
Enriquez)
6. Petitioners Sanlakas and PM, and SJS
Officers/Members, have no legal standing or
locus standi to bring suit.
As a party list organization, it has not
demonstrated any injury to itself which would
justify the resort to the Court. It is a juridical
person not subject to arrest. Thus, it cannot
claim to be threatened by a warrantless arrest.
Nor is it alleged that its leaders, members, and
supporters are being threatened with
warrantless arrest and detention for the crime
of rebellion. Every action must be brought in
the name of the party whose legal rights has
been invaded or infringed, or whose legal right
is under imminent threat of invasion or
infringement. (citing Lacson vs Perez)
7. That petitioner SJS officers/members are
taxpayers and citizens does not necessarily
endow them with standing.
A taxpayer may bring suit where the act
complained of directly involves the illegal
disbursement of public funds derived from
taxation. No such illegal disbursement is
alleged
A citizen will be allowed to raise a constitutional
question only when he can show that he has
personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct
of the government; the injury is fairly traceable
to the challenged action; and the injury is likely
to be redressed by a favorable action. Again, no
such injury is alleged in this case.
8. Even if the petition of the party list
organizations is treated as one for declaratory
relief, the same will not prosper since the
Supreme Court is without jurisdiction to
entertain such suits at the first instance.
Calling Out Power
9. For the purpose of exercising the calling out
power the Constitution does not require the
President to make a declaration of a state of
rebellion.
10. Section 18, Article VII grants the President,
as Commander-in-Chief, a "sequence" of
"graduated powers. From the most to the
least benign, these are: (a) the calling out
power, (b) the power to suspend the
privilege of the writ of habeas corpus, and
(c) the power to declare martial law.
11. In the exercise of the latter two powers, the
Constitution requires the concurrence of two
conditions, namely, (1) an actual invasion or
rebellion, and (2) that public safety requires the
exercise of such power. However, these
conditions are not required in the exercise of
the calling out power.
12. The only criterion for the exercise of the
calling out power is that 'whenever it
becomes necessary,' the President may call
the armed forces 'to prevent or suppress
lawless violence, invasion or rebellion.'"
13. The President has full discretionary power
to call out the armed forces and to determine
the necessity for the exercise of such power.
While the Court may examine whether the
power was exercised within constitutional limits
or in a manner constituting grave abuse of
discretion, none of the petitioners here have, by
way of proof, supported their assertion that the
President acted without factual basis.
Declaration of state of rebellion
14. The President has authority to declare a
state of rebellion, which authority springs in the
main from her powers as chief executive and,
112
at the same time, draws strength from
her Commander-in-Chief Powers.
15. Statutory authority for such a declaration
may be found in the Revised Administrative
Code of 1987 which authorizes the President to
issue Proclamations declaring a status or indirect exercise of emergency powers, which
condition of public moment or interest, upon
the existence of which the operation of a
specific law or regulation is made to depend
16. Nevertheless, in calling out the armed
forces, a declaration of a state of rebellion is
an utter superfluity. At most, it only gives
notice to the nation that such a state exists and
that the armed forces may be called to prevent
or suppress it. Such a declaration is devoid
of any legal significance. For all legal intents,
the declaration is deemed not written.
Warrantless arrest for rebellion
17. The mere declaration of a state of rebellion
cannot diminish or violate constitutionally
protected rights. Indeed, if a state of martial
law does not suspend the operation of the
Constitution or automatically suspend the
privilege of the writ of habeas corpus, then it is
with more reason that a simple declaration of a
state of rebellion could not bring about these
conditions.
18. The warrantless arrest feared by petitioners
is not based on the declaration of a 'state of
rebellion.' In other words, a person may be
subjected to a warrantless arrest for the crime
of rebellion whether or not the President has
declared a state of rebellion, so long as the
requisites for a valid warrantless arrest under
Section 5, Rule 113 of the Rules of Court are
present.
Declaration of Martial Law
19. The argument that the declaration of a
state of rebellion amounts to a declaration of
martial law and, therefore, is a circumvention of
the report requirement, is a leap of logic. There
is no indication that military authorities have
taken over the functions of civil government.
There is no indication that the President has
exercised judicial and legislative powers. In
short, there is no illustration that the President
has attempted to exercise or has exercised
martial law powers.
Emergency powers
20. Neither can the declaration constitute an
exercise depends upon a grant of Congress
pursuant to Section 23 (2), Article VI of the
Constitution.
21. The President, in declaring a state of
rebellion and in calling out the armed forces,
was merely exercising a wedding of her Chief
Executive and Commander-in-Chief powers.
These are purely executive powers, vested on
the President by Sections 1 and 18, Article VII,
as opposed to the delegated legislative powers
contemplated by Section 23 (2), Article VI.
31. Case Summary
Marcos vs Comelec (1995)
G.R. No. 119976 | 1995-09-18
Subject:
Election Law; Residency Qualification;
Abandonment and Transfer of Domicile;
Statutory Construction, Directory vs Mandatory
provisions; Jurisdiction over Disqualification
Case (Comelec vs Electoral Tribunal)
Facts:
Imelda Romualdez-Marcos filed her Certificate
of Candidacy (COC) for the position of
Representative of the First District of Leyte
indicating only a period of seven months
residency in the constituency where she sought
to be elected.
Cirilo Roy Montejo, the incumbent
Representative and a candidate for the same
position, filed a petition for disqualification with
the Comelec alleging that Marcos did not meet
the one year residency requirement for
candidates for the House of Representatives.
Thereafter, Marcos filed an amended COC and
changed the residency portion from seven
months to since childhood and claimed that
her earlier entry was simply a result of an
"honest misinterpretation or honest mistake."
Although she only became a resident of the
113
Municipality of Tolosa for seven months, she
has always been a resident of Tacloban City, a
component of the First District, before coming
to Tolosa, and has always maintained Tacloban
City as her domicile or residence.
However, the provincial election supervisor
stated that that the deadline for filing
certificates of candidacy has already lapsed.
The Comelec Division declared Marcos
disqualified for failing to meet and prove the
one year residency requirement. It did not give
credence to her claim of honest error.
Moreover, the division found that, except for
the time that she studied and worked for some
years after graduation in Tacloban City, she
continuously lived in Manila. She even
registered as a voter in various places in Manila
and served as member of the Batasang
Pambansa as the representative of the City of
Manila and later on served as the Governor of
Metro Manila. In effect, Marcos was deemed to
have abandoned her domicile in Tacloban City
in favor of Manila.
The Comelec En Banc upheld the division and
declared Marcos as disqualified from running
for the First District of Leyte for failing to meet
the residency requirement.
In the meantime, Marcos was the overwhelming
winner of the elections for the congressional
seat in the First District of Leyte in the May 8,
1995 elections. In view of the Comelec
Resolution suspending her proclamation,
Marcos filed a petition with the Supreme Court
to obtain relief.
Held:
Residency Qualification (Residence and
Domicile in Election Law)
1. In election cases, the term "residence"
has always been considered as synonymous
with "domicile" which imports not only the
intention to reside in a fixed place but also
personal presence in-that place, coupled with
conduct indicative of such intention. Domicile
denotes a fixed permanent residence to which
when absent for business or pleasure, or for like
reasons, one intends to return. (citing Perfecto
Faypon vs. Eliseo Quirino)
2. Article 50 of the Civil Code decrees that "[f]or
the exercise of civil rights and the fulfillment of
civil obligations, the domicile of natural persons
is their place of habitual residence."
3. The essential distinction between residence
and domicile in law is that residence involves
the intent to leave when the purpose for which
the resident has taken up his abode ends. One
may seek a place for purposes such as
pleasure, business, or health. If a person's
intent be to remain, it becomes his domicile; if
his intent is to leave as soon as his purpose is
established it is residence. Thus, an individual
may have different residences in various
places. However, a person can only have a
single domicile, unless, for various reasons,
he successfully abandons his domicile in favor
of another domicile of choice.
4. "Residence" is used to indicate a place of
abode, whether permanent or temporary;
"domicile" denotes a fixed permanent residence
to which, when absent, one has the intention of
returning. A man may have a residence in
one place and a domicile in
another. Residence is not domicile, but
domicile is residence coupled with the intention
to remain for an unlimited time. A man can
have but one domicile for the same purpose at
any time, but he may have numerous places of
residence.
Determining Residency Qualification
5. It is the fact of residence, not a statement in
a certificate of candidacy which ought to be
decisive in determining whether or not and
individual has satisfied the constitution's
residency qualification requirement. The said
statement becomes material only when there is
or appears to be a deliberate attempt to
mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible.
Domicile of Marcos
6. It appears that Marcos merely committed an
honest mistake in jotting the word "seven" in
the space provided for the residency
qualification requirement. A close look at said
certificate would reveal the possible source of
the confusion: the entry for residence (Item No.
114
7) is followed immediately by the entry for
residence in the constituency where a
candidate seeks election (Item No. 8). The
juxtaposition of entries in Item 7 and Item 8 -
the first requiring actual residence and the
second requiring domicile - coupled with the
circumstances surrounding petitioner's
registration as a voter in Tolosa obviously led to
her writing down an unintended entry for which
she could be disqualified.
7. An individual does not lose his domicile even
if he has lived and maintained residences in
different places. Residence implies a factual
relationship to a given place for various
purposes. The absence from legal residence or
domicile to pursue a profession, to study or to
do other things of a temporary or semi-
permanent nature does not constitute loss of
residence. Hence, the registration of a voter
in a place other than his residence of
origin has not been deemed sufficient to
constitute abandonment or loss of such
residence.
8. Marcos held various residences for different
purposes during the last four decades. None of
these purposes unequivocally point to an
intention to abandon her domicile of origin in
Tacloban, Leyte.
9. As to the contention that Tacloban was not
Marcos domicile of origin because she was
born in Manila and did not live in Tacloban until
she was eight years old, it is held that a minor
follows the domicile of his parents.In spite
of the fact of her being born in Manila, her
domicile of origin by operation of law is
Tacloban, Leyte.
Meaning of Residence in Civil law vs
Election Law
10. The term residence may mean one thing in
civil law (or under the Civil Code) and quite
another thing in political law. Insofar as the Civil
Code is concerned-affecting the rights and
obligations of husband and wife - the term
residence should only be interpreted to mean
"actual residence." (Note: as opposed to
election law where residence is synonymous
with domicile)
11. Imelda Marcos did not lose her domicile of
origin by operation of law as a result of her
marriage to the late President Ferdinand Marcos
in 1952. The female spouse does not
automatically lose her domicile of origin in
favor of the husband's choice of residence
upon marriage.
12. When Imelda was married to then
Congressman Ferdinand Marcos, she was
obliged - by virtue of Article 110 of the Civil
Code - to follow her husband's actual place of
residence fixed by him. What she gained in that
case was merely a new actual residence. She
did not lose her domicile of origin.
13. Even assuming that she lost her domicile
upon marriage to her husband, her actions after
the death of her husband and her return to the
country indicate her choice to make her
domicile of origin (Tacloban) as her new
domicile, i.e., seeking the PCGG's permission to
rehabilitate the ancestral house in Tacloban and
obtaining her residence certificate in 1992 in
Tacloban.
Abandonment of Domicile
14. A domicile of origin is not easily lost. To
successfully effect a change of domicile, one
must demonstrate:
(1) An actual removal or an actual change of
domicile;
(2) A bona fide intention of abandoning the
former place of residence and establishing a
new one; and
(3) Acts which correspond with the purpose.
15. To effect an abandonment requires the
voluntary act of relinquishing petitioner's
former domicile with an intent to supplant the
former domicile with one of her own choosing
(domicilium voluntarium).
Transfer of Domicile
16. In Romualdez vs. RTC, the Court explained
how one acquires a new domicile by choice.
There must concur:
(1) residence or bodily presence in the new
locality;
115
(2) intention to remain there (animus
manendi) ; and
(3) intention to abandon the old domicile
(animus non revertendi)
Statutory Construction, Directory vs
Mandatory provisions
17. Marcos contends that the jurisdiction of the
COMELEC had already lapsed considering that
the assailed resolutions were rendered on April
24, 1995, fourteen days before the election in
violation of Section 78 of the Omnibus Election
Code.
18. It is a settled doctrine that a statute
requiring rendition of judgment within a
specified time is generally construed to be
merely directory, "so that non-compliance with
them does not invalidate the judgment on the
theory that if the statute had intended such
result it would have clearly indicated it."
19. The difference between a mandatory and
directory provision is often determined on
grounds of expediency, the reason being that
less injury results to the general public by
disregarding than enforcing the letter of the
law.
Jurisdiction over Disqualification Case
(Comelec vs Electoral Tribunal)
20. The COMELEC does not lose jurisdiction to
hear and decide a pending disqualification case
under Section 78 of B.P. 881 even after the
elections.
21. The jurisdiction of House of Representatives
Electoral Tribunal (HRET) as the sole judge of all
contests relating to the elections, returns and
qualifications of members of Congress
begins only after a candidate has become a
member of the House of Representatives.
(Note: a winning candidate to a Congressional
seat only becomes a member of the House
after being proclaimed as the winner and being
duly sworn into office. Marcos, not being
proclaimed and sworn in yet, cannot invoke the
jurisdiction of the HRET)
32. Case Summary
Ang Bagong Bayani-OFW Labor Party vs.
COMELEC
G.R. No. 147589 | 2001-06-26
Subject:
Participation of Political Parties in the Party-List
System, Proportional Representation,
Marginalized and Underrepresented Sectors,
Guidelines for Screening Party-List Participants
Facts:
COMELEC issued Omnibus Resolution No. 3785
on March 26, 2001, which approved the
participation of 154 organizations and parties in
the 2001 party-list elections.
Petitioners assail Omnibus Resolution No. 3785
for accepting organizations and parties contrary
to the purpose of the party-list system which is
to benefit the marginalized and
underrepresented and not the mainstream
political parties.
Petitioners argue that the respondent parties do
not belong to the marginalized and
underrepresented sector, hence should be
disqualified.
Held:
Recourse under Rule 65 of Rules of Court
1. Under both the Constitution and the Rules of
Court, a challenge on the validity of a Comelec
Resolution for having been issued with grave
abuse of discretion may be brought before the
Supreme Court in a verified petition for
certiorari under Rule 65.
2. Omnibus Resolution No. 3785 was
promulgated by the Comelec en banc. As such,
no motion for reconsideration was possible, it
being a prohibited pleading under Section 1 (d),
Rule 13 of the Comelec Rules of Procedure.
Hence, resort to Rule 65 is proper.
3. In any event, this case presents an exception
to the rule that certiorari shall lie only in the
absence of any other plain, speedy and
adequate remedy. It has been held that
certiorari is available, notwithstanding the
presence of other remedies, where the issue
raised is one purely of law, where public
116
interest is involved, and in case of urgency.
4. Procedural requirements may be glossed
over to prevent a miscarriage of justice, when
the issue involves the principle of social justice,
when the decision sought to be set aside is a
nullity, or when the need for relief is extremely
urgent and certiorari is the only adequate and
speedy remedy available.
Participation of Political Parties in the
Party-List System
5. Under the Constitution and RA 7941,
respondents cannot be disqualified from the
party-list elections, merely on the ground that
they are political parties.
6. Section 5, Article VI of the Constitution
provides that members of the House of
Representatives may be elected through a
party-list system of registered national,
regional, and sectoral parties or organizations.
7. Furthermore, under Sections 7 and 8, Article
IX (C) of the Constitution, political parties may
be registered under the party-list system.
8. During the deliberations in the Constitutional
Commission, Commissioner Monsod stated that
the purpose of the party-list provision was to
open up the system, in order to give a chance
to parties that consistently place third or fourth
in congressional district elections to win a seat
in Congress.
9. Section 3 of RA 7941 expressly states that a
'party' is 'either a political party or a sectoral
party or a coalition of parties.'
10. RA 7941 defines 'political party' as 'an
organized group of citizens advocating an
ideology or platform, principles and policies for
the general conduct of government and which,
as the most immediate means of securing their
adoption, regularly nominates and supports
certain of its leaders and members as
candidates for public office'
11. The fact that political parties may
participate in the party-list elections does not
mean, however, that any political party or any
organization or group for that matter may do
so. The requisite character of these parties or
organizations must be consistent with the
purpose of the party-list system, as laid down in
the Constitution and RA 7491.
12. RA 7491 mandates a state policy of
promoting proportional representation by
means of a party-list system which will enable
the election to the House of Representatives of
Filipino citizens, 1. Who belong
to marginalized and
underrepresented sectors, organizations and
parties; and 2. Who lack well-defined
constituencies; but 3. Who could contribute to
the formulation and enactment of appropriate
legislation that will benefit the nation as a
whole.
Proportional representation
13. Proportional representation does not refer
to the number of people in a particular district,
because the party-list election is national in
scope. Neither does it allude to numerical
strength in a distressed or oppressed group.
14. Proportional representation refers to the
representation of the marginalized and
underrepresented
Lack of well-defined constituency
15. Lack of well-defined constituency refers to
the absence of a traditionally identifiable
electoral group, like voters of a congressional
district or territorial unit of government. It
points again to those with disparate interests
identified with the marginalized or
underrepresented.
Marginalized and Underrepresented
16. The marginalized and underrepresented
sectors are enumerated in Section 5 of RA
7491: namely, labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans,
overseas workers, and professionals.
17. While the enumeration is not exclusive, it
demonstrates the clear intent of the law that
not all sectors can be represented under the
party-list system.
18. The OSGs assertions that any party or
117
group that is not disqualified under Section 6 of
RA 7491 may participate, even the super-rich
and overrepresented, are contrary to RA 7491
and the Constitution. The party-list system is a
tool for the benefit of the underprivileged; the
law could not have given the same tool to
others, to the prejudice of the intended
beneficiaries.
19. The intent of the Constitution is to give
genuine power to the people by enabling them
to become veritable lawmakers themselves.
Nevertheless, the Comelec must ensure that
only Filipinos who are marginalized and
underrepresented may become members of
Congress under the party-list system, Filipino-
style.
Requirement to Participate in the
Philippine Party-List System
20. Guidelines for Screening Party-List
Participants:
First, the political party, sector,
organization or coalition must represent
the marginalized and underrepresented
groups identified in Section 5 of RA 7941.
Second, while even major political parties
are expressly allowed by RA 7941 and the
Constitution to participate in the party-list
system, they must comply with the
declared statutory policy enabling Filipino
citizens belonging to marginalized and
underrepresented sectors to be elected to
the House of Representatives.
Third, the religious sector may not be
represented in the party-list system.
Fourth, a party or an organization must
not be disqualified under Section 6 of RA
7941.
Fifth, the party or organization must not
be an adjunct of, or a project organized or
an entity funded or assisted by, the
government.
Sixth, the party must not only comply
with the requirements of the law. Its
nominees must likewise do so.
Seventh, not only the candidate party or
organization must represent marginalized
and underrepresented sectors. So also
must its nominees.
Eighth, while lacking a well-defined
political constituency, the nominee must
likewise be able to contribute to the
formulation and enactment of appropriate
legislation that will benefit the nation as a
whole.
33. Case Summary
Atong Paglaum vs Comelec (2013)
G.R. No. 203766, G.R. Nos. 203818-19, G.R. No.
203922, G.R. No. 203936, G.R. No. 203958, G.R.
No. 203960, G.R. No. 203976, G.R. No. 203981,
G.R. No. 204002, G.R. No. 204094, G.R. No.
204100, G.R. No. 204122, G.R. No. 204125, G.R.
No. 204126, G.R. No. 2041 | 2013-04-02
Subject: Party-List System under the 1987
Constitution; Party-List system was intended to
include even non-sectoral organizations;
Political party vs Sectoral party; National and
Regional parties need NOT represent the
marginalized and underrepresented sectors,
may be simply organized as political parties;
Not all sectoral parties must represent the
marginalized and underrepresented sectors;
Marginalized and Underrepresented
requirement shall be limited to sectors that by
their nature are economically at the margins of
society; Major political parties could participate
in party-list elections only through their sectoral
wings; Re-examination of the ruling in Ang
Bagong Bayani and BANAT; New Parameters in
determining who are qualified to participate in
the party-list elections
Facts:
These consolidated petitions were filed by 52
party-lists groups assailing the resolution issued
by the COMELEC disqualifying them from
participating in the May 2013 party-list
elections, either by denial of their new petitions
for registration under the party-list system, or
by cancellation of their existing registration and
accreditation as party-list organizations. The SC
issued Status Quo Ante Orders in all petitions.
The SC is called upon to determine whether the
criteria for participating in the party-list system
118
laid down in Ang Bagong Bayani vs. Comelec
(BANAT case) should be applied by the
COMELEC in the coming May 2013 party-list
elections.
Held:
Party-List System under the 1987
Constitution
1. The 1987 Constitution provides the basis for
the party-list system of representation.
Relevant provisions are found in Section 5,
Article VI and Sections 7 and 8, Article IX-C of
the 1987 Constitution.
2. The party-list system is intended to
democratize political power by giving political
parties that cannot win in legislative district
elections a chance to win seats in the House of
Representatives. The voter elects two
representatives in the House of
Representatives: one for his or her legislative
district, and another for his or her party-list
group or organization of choice
Party-List system was intended to include
even non-sectoral organizations
3. Commissioner Christian S. Monsod, the main
sponsor of the party-list system, stressed that
the party-list system is not synonymous with
that of the sectoral representation
4. The framers of the 1987 Constitution
expressly rejected the proposal to make the
party-list system exclusively for sectoral parties
only, and they clearly intended the party-list
system to include both sectoral and non-
sectoral parties. The framers intended the
sectoral parties to constitute a part, but not the
entirety, of the party-list system. In fact, the
proposal to give permanent reserved seats to
certain sectors was outvoted. Instead, the
reservation of seats to sectoral representatives
was only allowed for the first three consecutive
terms.
5. Section 5(1), Article VI of the Constitution
provides that there shall be a party-list system
of registered national, regional, and sectoral
parties or organizations. The commas separate
national and regional parties from sectoral
parties. Had the framers of the 1987
Constitution intended national and regional
parties to be at the same time sectoral, they
would have stated national and regional
sectoral parties. They did not, precisely
because it was never their intention to make
the party-list system exclusively sectoral.
6. Thus, the party-list system is composed
of three different groups:
(1) national parties or organizations;
(2) regional parties or organizations; and
(3) sectoral parties or organizations. National
and regional parties or organizations are
different from sectoral parties or organizations.
National and regional parties or organizations
need not be organized along sectoral lines and
need not represent any particular sector.
Political party vs Sectoral party
7. Republic Act No. 7941 or the Party-List
System Act, which is the law that implements
the party-list system, defines a party as
either a political party or a sectoral party or a
coalition of parties. Clearly, a political party is
different from a sectoral party. Section 3(c) of
R.A. No. 7941 further provides that a political
party refers to an organized group of
citizens advocating an ideology or platform,
principles and policies for the general conduct
of government. On the other hand, Section
3(d) of R.A. No. 7941 provides that a sectoral
party refers to an organized group of citizens
belonging to any of the sectors enumerated in
Section 5 hereof whose principal advocacy
pertains to the special interest and concerns of
their sector.
National and Regional parties need NOT
represent the marginalized and
underrepresented sectors, may be simply
organized as Political Parties
8. R.A. No. 7941 does not require national and
regional parties or organizations to represent
the marginalized and underrepresented
sectors. To require all national and regional
parties under the party-list system to represent
the marginalized and underrepresented is to
deprive and exclude, by judicial fiat, ideology-
based and cause-oriented parties from the
party-list system. To exclude them from the
party list system is to prevent them from
joining the parliamentary struggle, leaving as
119
their only option the armed struggle. To exclude
them from the party-list system is patently
contrary to the clear intent and express
wording of the 1987 Constitution and R.A. No.
7941.
9. Under the party-list system, an ideology-
based or cause-oriented political party is clearly
different from a sectoral party. A political party
need not be organized as a sectoral party and
need not represent any particular sector. There
is no requirement in R.A. No. 7941 that a
national or regional political party must
represent a marginalized and
underrepresented sector. It is sufficient that
the political party consists of citizens who
advocate the same ideology or platform, or the
same governance principles and policies,
regardless of their economic status as citizens.
Not all sectoral parties must represent the
marginalized and underrepresented
sectors
10. Section 5 of R.A. No. 7941 states that the
sectors shall include labor, peasant, fisherfolk,
urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans,
overseas workers, and professionals. The
sectors mentioned in Section 5 are not all
necessarily marginalized and
underrepresented. For sure, professionals based and cause-oriented parties who lack
are not by definition marginalized and
underrepresented, not even the elderly,
women, and the youth. However, professionals,
the elderly, women, and the youth may lack
well-defined political constituencies, and can
thus organize themselves into sectoral parties
in advocacy of the special interests and
concerns of their respective sectors.
11. The phrase marginalized and
underrepresented appears only once in R.A.
No. 7941, in Section 2 on Declaration of Policy.
While the policy declaration in Section 2 of R.A.
No. 7941 broadly refers to marginalized and
underrepresented sectors, organizations and
parties, the specific implementing provisions
of R.A. No. 7941 do not define or require that
the sectors, organizations or parties must be
marginalized and underrepresented.
Marginalized and Underrepresented
requirement shall be limited to sectors
that by their nature are economically at
the margins of society
12. The phrase marginalized and
underrepresented should refer only to the
sectors in Section 5 that are, by their nature,
economically marginalized and
underrepresented. These sectors are: labor,
peasant, fisherfolk, urban poor, indigenous
cultural communities, veterans, overseas
workers, and other similar sectors. For these
sectors, a majority of the members of the
sectoral party must belong to the marginalized
and underrepresented. The nominees of the
sectoral party either must belong to the sector,
or must have a track record of advocacy for the
sector represented. Belonging to the
marginalized and underrepresented sector
does not mean one must wallow in poverty,
destitution or infirmity. It is sufficient that one,
or his or her sector, is below the middle class.
More specifically, the economically
marginalized and underrepresented are those
who fall in the low income group as classified
by the National Statistical Coordination Board.
13. The recognition that national and regional
parties, as well as sectoral parties of
professionals, the elderly, women and the
youth, need not be marginalized and
underrepresented will allow small ideology-
well-defined political constituencies a chance
to win seats in the House of Representatives.
On the other hand, limiting to the marginalized
and underrepresented the sectoral parties for
labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped,
veterans, overseas workers, and other sectors
that by their nature are economically at the
margins of society, will give the marginalized
and underrepresented an opportunity to
likewise win seats in the House of
Representatives.
14. This interpretation will harmonize the 1987
Constitution and R.A. No. 7941 and will give rise
to a multi-party system where those
marginalized and underrepresented, both in
economic and ideological status, will have the
opportunity to send their own members to the
House of Representatives.
Major political parties could participate in
120
party-list elections only through their
sectoral wings
15. The major political parties are those that
field candidates in the legislative district
elections. Major political parties cannot
participate in the party-list elections since
they neither lack well-defined political
constituencies nor represent
marginalized and underrepresented
sectors.
16. Thus, the national or regional parties under
the party-list system are necessarily those that
do not belong to major political parties. This
automatically reserves the national and
regional parties under the party-list system
tothose who lack well-defined political
constituencies, giving them the opportunity to
have members in the House of Representatives.
17. However, major political parties could
participate in party-list elections only
through their sectoral wings. The
participation of major political parties through
their sectoral wings, a majority of whose
members are marginalized and
underrepresented or lacking in well-defined
political constituencies, will facilitate the entry
of the marginalized and underrepresented
and those who lack well-defined political
constituencies as members of the House of
Representatives.
18. Thus, to participate in party-list elections, a
major political party that fields candidates in
the legislative district elections must organize a
sectoral wing, like a labor, peasant, fisherfolk,
urban poor, professional, women or youth wing,
that can register under the party-list system.
19. Such sectoral wing of a major political party
must have its own constitution, by-laws,
platform or program of government, officers
and members, a majority of whom must belong
to the sector represented. The sectoral wing is
in itself an independent sectoral party, and
is linked to a major political party through a
coalition. This linkage is allowed by Section 3 of
R.A. No. 7941, which provides that component
parties or organizations of a coalition may
participate independently (in party-list
elections) provided the coalition of which they
form part does not participate in the party-list
system.
20. A party-list nominee must be a bona
fide member of the party or organization which
he or she seeks to represent. In the case of
sectoral parties, to be a bona fide party-list
nominee one must either belong to the sector
represented, or have a track record of advocacy
for such sector.
Re-examination of the ruling in Ang
Bagong Bayani and BANAT
21. In disqualifying petitioners, the COMELEC
used the criteria prescribed in Ang Bagong
Bayani and BANAT. Ang Bagong Bayani laid
down the guidelines qualifying those who desire
to participate in the party-list system. Notably,
major political parties were allowed to
participate in party-list elections. In 2009, by a
vote of 8-7 in BANAT, the majority officially
excluded major political parties from
participating in party-list elections. The minority
in BANAT, however, believed that major political
parties can participate in the party-list system
through their sectoral wings.
22. We cannot, however, fault the COMELEC for
following prevailing jurisprudence in
disqualifying petitioners. In following prevailing
jurisprudence, the COMELEC could not have
committed grave abuse of discretion. However,
for the coming 13 May 2013 party-list elections,
we must now impose and mandate the party-
list system actually envisioned and
authorized under the 1987 Constitution and
R.A. No. 7941. We declare that it would not be
in accord with the 1987 Constitution and R.A.
No. 7941 to apply the criteria in Ang Bagong
Bayani and BANAT in determining who are
qualified to participate in the coming 13 May
2013 party-list elections.
23. The COMELEC excluded from participating
in the 13 May 2013 partylist elections those
that did not satisfy these two criteria: (1) all
national, regional, and sectoral groups or
organizations must represent the marginalized
and underrepresented sectors, and (2) all
nominees must belong to the marginalized
and underrepresented sector they represent.
Petitioners may have been disqualified by the
COMELEC because as political or regional
121
parties they are not organized along sectoral
lines and do not represent the marginalized
and underrepresented. Also, petitioners'
nominees who do not belong to the sectors
they represent may have been disqualified,
although they may have a track record of
advocacy for their sectors. Likewise, nominees
of non-sectoral parties may have been
disqualified because they do not belong to any
sector. Moreover, a party may have been
disqualified because one or more of its
nominees failed to qualify, even if the party has
at least one remaining qualified nominee. As
discussed above, the disqualification of
petitioners, and their nominees, under such
circumstances is contrary to the 1987
Constitution and R.A. No. 7941.
New Parameters in determining who are
qualified to participate in the party-list
elections
24. Thus, we remand all the present petitions to
the COMELEC. In determining who may
participate in the coming 13 May 2013 and
subsequent party-list elections, the COMELEC
shall adhere to the following parameters:
1. Three different groups may participate in the
party-list system: (1) national parties or
organizations, (2) regional parties or
organizations, and (3) sectoral parties or
organizations.
2. National parties or organizations and regional
parties or organizations do not need to organize
along sectoral lines and do not need to
represent any marginalized and
underrepresented sector.
3. Political parties can participate in party-list
elections provided they register under the
party-list system and do not field candidates in
legislative district elections. A political party,
whether major or not, that fields candidates in
legislative district elections can participate in
party list elections only through its sectoral
wing that can separately register under the
party-list system. The sectoral wing is by itself
an independent sectoral party, and is linked to
a political party through a coalition.
4. Sectoral parties or organizations may either
be marginalized and underrepresented or
lacking in well-defined political
constituencies. It is enough that their principal
advocacy pertains to the special interest and
concerns of their sector. The sectors that are
marginalized and underrepresented include
labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped,
veterans, and overseas workers. The sectors
that lack well-defined political constituencies
include professionals, the elderly, women, and
the youth. 5. A majority of the members of
sectoral parties or organizations that represent
the marginalized and underrepresented must
belong to the marginalized and
underrepresented sector they represent.
Similarly, a majority of the members of sectoral
parties or organizations that lack well-defined
political constituencies must belong to the
sector they represent. The nominees of sectoral
parties or organizations that represent the
marginalized and underrepresented, or that
represent those who lack well-defined political
constituencies, either must belong to their
respective sectors, or must have a track record
of advocacy for their respective sectors. The
nominees of national and regional parties or
organizations must be bona-fide members of
such parties or organizations.
6. National, regional, and sectoral parties or
organizations shall not be disqualified if some
of their nominees are disqualified, provided that
they have at least one nominee who remains
qualified.
34. Case Summary
Veterans Foundation Party vs. COMELEC
(2000)
G.R. No. 136781 | 2000-10-06
Subject: Party list system - four inviolable
parameters; Twenty (20%) percent allocation,
computation; Twenty (20%) percent allocation,
a ceiling only; Two (2%) percent threshold, valid
statutory requirement; Three (3) seat
allocation, valid statutory requirement; Method
of Allocating Additional Seats; Method of
Allocating Additional Seats - Philippine formula;
Comelec resolutions void for being violative of
RA 7941
Facts:
Pursuant to Section 18 of Republic Act (RA) No.
7941 or the Party List System Act, the Comelec
122
en banc promulgated Resolution No. 2847,
prescribing the rules and regulations governing
the election of party-list representatives
through the party-list system.
On May 11, 1998, the first election for party-list
representation was held simultaneously with
the national elections. A total of 123 parties,
organizations and coalitions participated. On
June 26, 1998, the Comelec en banc proclaimed
thirteen party-list representatives from twelve
parties and organizations, which had obtained
at least 2% of the total number of votes cast for
the party-list system. Two of the proclaimed
representatives belonged to Petitioner APEC,
which obtained 5.5 percent of the votes.
After a special elections, the Comelec en banc
further determined that COCOFED (Philippine
Coconut Planters' Federation, Inc.) was entitled
to one party-list seat for having garnered
186,388 votes, which were equivalent to 2.04
percent of the total votes cast for the party-list
system. Thus, its first nominee, Emerito S.
Calderon, was proclaimed as the 14th party-list
representative.
PAG-ASA (People's Progressive Alliance for
Peace and Good Government Towards
Alleviation of Poverty and Social Advancement)
filed a petition with the Comelec alleging that
the filling up of the twenty percent membership
of party-list representatives in the House of
Representatives, as provided under the
Constitution, equivalent to 52 party-list
representatives, was mandatory. It claimed that
the literal application of the two percent vote
requirement and the three-seat limit under RA
7941 would defeat this constitutional provision,
for only 25 nominees would be declared
winners. Thereafter, other party-list
organizations filed their respective Motions for
Intervention, seeking the same relief.
The Comelec Second Division promulgated its
Resolution granting PAG-ASA's Petition. It
ordered the proclamation of herein 38
respondents who, in addition to the 14 already
sitting, would thus total 52 party-list
representatives. It held that "at all times, the
total number of congressional seats must be
filled up by 80% percent district representatives
and 20% party-list representatives." In
allocating the 52 seats, it disregarded the two
percent-vote requirement prescribed under
Section 11 (b) of RA 7941 and thus concluded
that "the party-list groups ranked Nos. 1 to 51 x
x x should have at least one representative."
The Comelec en banc affirmed the Resolution of
its Second Division. The Comelec en banc
accepted that the 20% party list membership,
comprising 52 seats, must be filled up. It
resolved that the 38 remaining seats (52 less
14 who qualified under the 2% vote threshold)
should be distributed, not among those same
14 qualifying party list organizations, but
among the remaining party lists even if they
had not passed the two percent threshold.
Several petitions for certiorari, prohibition and
mandamus were filed before the Supreme Court
by the parties and organizations that had
obtained at least two per cent of the total votes
cast for the party-list system.
The court narrowed the issues for resolution to
the following:
(1) Is the 20% allocation for party-list
representatives mandatory or is it merely a
ceiling? In other words, should the twenty
percent allocation for party-list solons be filled
up completely and all the time?
(2) Are the 2% threshold requirement and the
three-seat limit provided in Section 11 (b) of RA
7941 constitutional?
(3) If the answer to Issue 2 is in the affirmative,
how should the additional seats of a qualified
party be determined?
Held:
Party list system - four inviolable
parameters
1. Our 1987 Constitution introduced a novel
feature into our presidential system of
government -- the party-list method of
representation. Under this system, any
national, regional or sectoral party or
organization registered with the Commission on
Elections may participate in the election of
party-list representatives who, upon their
election and proclamation, shall sit in the House
of Representatives as regular members. In
123
effect, a voter is given two (2) votes for the
House -- one for a district congressman and
another for a party-list representative.
2. The party list system of representation is
mandated by Section 5, Article VI of the
Constitution. Pursuant thereto, Congress
enacted Republic Act (RA) No. 7941 or the Party
List System Act on March 3, 1995. Under the
Constitution and RA No. 7941, the four
inviolable parameters under a Philippine-style
party-list election are:
(a) the twenty (20%) percent allocation -
the combined number of all party-list
congressmen shall not exceed twenty percent
of the total membership of the House of
Representatives, including those elected under
the party list.
(b) the two (2%) percent threshold - only
those parties garnering a minimum of two
percent of the total valid votes cast for the
party-list system are "qualified" to have a
seat in the House of Representatives;
(c) the three-seat limit - each qualified party,
regardless of the number of votes it actually
obtained, is entitled to a maximum of three
seats; that is, one "qualifying" and two
additional seats.
(d) proportional representation -
the additional seats which a qualified party is
entitled to shall be computed "in proportion to
their total number of votes."
Twenty (20%) percent allocation,
computation
3. The Constitution makes the number of
district representatives the determinant in
arriving at the number of seats allocated for
party-list lawmakers, who shall comprise
"twenty per centum of the total number of
representatives including those under the
party-list." We thus translate this legal provision
into a mathematical formula, as follows:
No. of district representatives
---------------------------------- x .20 = No. of party-
list
.80 representatives
To illustrate, considering that there were 208
district representatives to be elected during the
1998 national elections, the number of party-
list seats would be 52, computed as follows:
208
-------- x .20 = 52 .80
4. This formulation means that any increase in
the number of district representatives, as may
be provided by law, will necessarily result in a
corresponding increase in the number of party-
list seats.
Twenty (20%) percent allocation, a ceiling
only
5. A simple reading of Section 5, Article VI of
the Constitution conveys that Congress was
vested with the broad power to define and
prescribe the mechanics of the party-list
system of representation. The Constitution
explicitly sets down only the percentage of the
total membership in the House of
Representatives reserved for party-list
representatives.
6. In the exercise of its constitutional
prerogative, Congress enacted RA 7941.
Congress declared therein a policy to promote
"proportional representation" in the election of
party-list representatives in order to enable
Filipinos belonging to the marginalized and
underrepresented sectors to contribute
legislation that would benefit them. It however
deemed it necessary to require parties,
organizations and coalitions participating in the
system to obtain at least two percent of the
total votes cast for the party-list system in
order to be entitled to a party-list seat. Those
garnering more than this percentage could
have additional seats in proportion to their total
number of votes. Furthermore, no winning
party, organization or coalition can have more
than three seats in the House of
Representatives.
7. Considering the foregoing statutory
requirements, the 20% allocation under Section
5 (2), Article VI of the Constitution is not
mandatory. It merely provides a ceiling for
party-list seats in Congress.
124

8. On the contention that a strict application of
the two percent threshold may result in a
"mathematical impossibility," suffice it to say
that the prerogative to determine whether to
adjust or change this percentage requirement
rests in Congress. Indeed, the function of the
Supreme Court, as well as of all judicial and
quasi-judicial agencies, is to apply the law as
we find it, not to reinvent or second-guess it.
Unless declared unconstitutional, ineffective,
insufficient or otherwise void by the proper
tribunal, a statute remains a valid command of
sovereignty that must be respected and obeyed
at all times. This is the essence of the rule of
law.
Two (2%) percent threshold, valid
statutory requirement
9. In imposing a two percent threshold,
Congress wanted to ensure that only those
parties, organizations and coalitions having
a sufficient number of constituents deserving of
representation are actually represented in
Congress.
10. The two percent threshold is consistent not
only with the intent of the framers of the
Constitution and the law, but with the very
essence of "representation." Under a republican
or representative state, all government
authority emanates from the people, but is
exercised by representatives chosen by them.
But to have meaningful representation, the
elected persons must have the mandate of a
sufficient number of people. Otherwise, in a
legislature that features the party-list system,
the result might be the proliferation of small
groups which are incapable of contributing
significant legislation, and which might even
pose a threat to the stability of Congress. Thus,
even legislative districts are apportioned
according to "the number of their respective
inhabitants, and on the basis of a uniform and
progressive ratio" to ensure meaningful local
representation.
Three (3) seat allocation, valid statutory
requirement
11. An important consideration in adopting the
party-list system is to promote and encourage a
multiparty system of representation. Consistent
with the Constitutional Commission's
pronouncements, Congress set theseat-limit to
three (3) for each qualified party, organization
or coalition. "Qualified" means having hurdled
the two percent vote threshold. Such three-seat
limit ensures the entry of various interest-
representations into the legislature; thus, no
single group, no matter how large its
membership, would dominate the party-list
seats, if not the entire House.
Method of Allocating Additional Seats
12. Several methods were considered in
determining how to allocate additional seats:
(a) One Additional Seat Per Two Percent
Increment a party that wins at least six
percent of the total votes cast will be entitled to
three seats; another party that gets four
percent will be entitled to two seats; and one
that gets two percent will be entitled to one
seat only. However, the court considered a
scenario wherein Party A receives 20% of votes
cast; Party B, 10%; and Party C, 6%. Applying
this method, Party A=10 seats; Party B=5 seats
and Party C=3 seats. Considering the three-
seat limit imposed by law, all the parties will
each uniformly have three seats only. This
results in a party garnering two or more times
the number of votes obtained by another, yet
getting the same number of seats as the other
one with the much lesser votes. In effect,
proportional representation will be contravened
and the law rendered nugatory. Hence, the
Court discarded it.
(b) Niemeyer Formula - this was developed by a
German mathematician and adopted by
Germany as its method of distributing party-list
seats in the Bundestag. Under this formula, the
number of additional seats to which a qualified
party would be entitled is determined by
multiplying the remaining number of seats to
be allocated by the total number of votes
obtained by that party and dividing the product
by the total number of votes garnered by all the
qualified parties. The integer portion of the
resulting product will be the number of
additional seats that the party concerned is
entitled to. Next is to distribute the extra seats
left among the qualified parties in the
descending order of the decimal portions of the
resulting products.
125
No. of remaining seats
to be allocated
No. of additional
-------------------------- x No. of votes of =
seats of party
Total no. of votes of party concerned
concerned
qualified parties
Integer.decimal)
The Niemeyer formula, while no doubt suitable
for Germany, finds no application in the
Philippine setting, because of our three-seat
limit and the non-mandatory character of the
twenty percent allocation. In Germany, there
are no seat limitations, because German law
discourages the proliferation of small parties. In
contrast, RA 7941 imposes a three-seat limit to
encourage the promotion of the multiparty
system.
Applying the Niemeyer formula under our
present set of facts, the thirteen qualified
parties will each be entitled to three seats,
resulting in an overall total of 39. Like the
previous proposal, the Niemeyer formula would
violate the principle of "proportional
representation," a basic tenet of our party-list
system.
Method of Allocating Additional Seats -
Philippine formula
13. The Philippine style party-list system is a
unique paradigm which demands an equally
unique formula:
Step 1: Rank all the participating parties,
highest to lowest, according to the votes they
each obtained. Then the ratio for each party is
computed by dividing its votes by the total
votes cast for all the parties participating in the
system. All parties with at least two percent of
the total votes are guaranteed one seat
each. Only these parties shall be considered in
the computation of additional seats. The party
receiving the highest number of votes shall
thenceforth be referred to as the "first" party.
Step 2: Determine the number of seats the
first party is entitled to, in order to be able to
compute that for the other parties. The other
qualified parties will always be allotted less
additional seats than the first party for two
reasons: (1) the ratio between said parties and
the first party will always be less than 1:1, and
(2) the formula does not admit of mathematical
rounding off, because there is no such thing as
a fraction of a seat. A fractional membership
cannot be converted into a whole membership
of one when it would, in effect, deprive another
party's fractional membership. It would be a
violation of the constitutional mandate of
proportional representation. (see Guingona Jr. v.
Gonzales)
Number of votes
of first party Proportion of votes of
-------------------- = first party relative to
Total votes for total votes for party-list
system
party-list system
If the proportion of votes received by the first
party without rounding it off is :
(a) equal to at least 6% of the total valid votes
cast for all the party list groups - then the first
party shall be entitled to two additional seats or
a total of three seats overall.
(b) equal to or greater than 4% but less than
6% - then the first party shall have one
additional or a total oftwo seats.
(c) less than 4% - then the first party shall not
be entitled to any additional seat. In short, it
shall have one seat.
Note that the above formula will be applicable
only in determining the number of additional
seats the first party is entitled to. It cannot be
used to determine the number of additional
seats of the other qualified parties. The use of
the same formula for all would contravene the
proportional representation parameter.
Step 3: Solve for the number of additional
seats that the other qualified parties are
entitled to, based
onproportional representation. In simplified
form, the formula is written as follows:
No. of votes of
Additional seats concerned party
No. of additional
for concerned = ------------------ x
126
 seats allocated to and CIBAC. With 7.2% votes, it is entitled to 2
party No. of votes of additional seats according to Veterans formula
the first party for allocating additional seats for the first party.
first party Other parties entitled to additional seats follow
a different formula, based on number of
Comelec resolutions void for being additional seats allocated to first party
violative of RA 7941
Barangay Association for National
14. The Comelec gravely abused its discretion Advancement and Transparency (BANAT) filed a
in ruling that the 38 respondent parties, petition to proclaim the full number of party-list
organizations and coalitions are each entitled to representatives (all 55 seats have to be
a party-list seat, because it glaringly violated proclaimed) provided by the Constitution before
two requirements of RA 7941: the two percent the COMELEC en banc. The COMELEC denied
threshold and proportional representation. the said petition, stating that it had already
become moot and academic.
15. In disregarding, rejecting and
circumventing these statutory provisions, the Held:
Comelec effectively arrogated unto itself what
the Constitution expressly and wholly vested in Party List System- Four Inviolable
the legislature: the power and the discretion to Parameters
define the mechanics for the enforcement of
the system. The wisdom and the propriety of 1. A Philippine-style party-list election has at
these impositions, absent any clear least four inviolable parameters as clearly
transgression of the Constitution or grave stated in Veterans:
abuse of discretion amounting to lack or excess
of jurisdiction, are beyond judicial review. Twenty percent allocation - the combined
number of all party-list congressmen shall
35. Case Summary not exceed twenty percent of the total
Banat v. Comelec membership of the House of
G.R. No. 179271 and G.R. No. 179295 | 2009- Representatives, including those elected
04-21 under the party list;

Subject: Two percent threshold - only those parties

Party List System, Application of Two Percent
Threshold and Three Seat Cap on Allocation of
Additional Seats, Major Political Parties in the
Party List System
Facts:
COMELEC applied the Veterans Federation
Party v. COMELEC formula (aka Panganiban
formula or First Party Rule) upon the completion
of the canvass and party-list results, thereby
proclaiming 15 party-lists to have obtained 21
seats in Congress.
In this case, BUHAY has the most number of
votes (1,178,747, which is 7.2% of the total
votes for the party-list system). Therefore,
BUHAY is the first party according to Veterans
garnering a minimum of two percent of
the total valid votes cast for the party-list
system are qualified to have a seat in
the House of Representatives;
Three-seat limit - each qualified party,
regardless of the number of votes it
actually obtained, is entitled to a
maximum of three seats; that is, one
qualifying and two additional seats;
Proportional representation- the additional
seats which a qualified party is entitled to
shall be computed "in proportion to their
total number of votes.
2. However, because the formula in Veterans
has flaws in its mathematical interpretation of
the term "proportional representation," the
Court is compelled to revisit the formula for the
127
allocation of additional seats to party-list
organizations
Application of Two Percent Threshold and
Three Seat Cap on Allocation of Additional
seats
Two percent threshold
3. The first clause of Section 11(b) of R.A. No.
7941 states that "parties, organizations, and
coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system
shall be entitled to one seat each." This clause
guarantees a seat to the two-percenters.
4. The second clause of Section 11(b) of R.A.
No. 7941 provides that "those garnering more
than two percent (2%) of the votes shall be
entitled to additional seats in proportion to their
total number of votes." This is where
petitioners' and intervenors' problem with the
formula in Veterans lies. Veterans interprets the
clause "in proportion to their total number of
votes" to be in proportion to the votes of the
first party. This interpretation is contrary to the
express language of R.A. No. 7941.
5. In computing the allocation
of additional seats, the continued operation of
the two percent threshold for the distribution of
the additional seats as found in the second
clause of Section 11 (b) of R.A. No. 7941 is
unconstitutional. (Note: The court strikes
down the two percent threshold only in
relation to the distribution of
the additional seats.)
6. The two percent threshold makes it
mathematically impossible to achieve the
maximum number of available party list seats
when the number of available party list seats
exceeds 50. The continued operation of the two
percent threshold in the distribution of the
additional seats frustrates the attainment of the
permissive ceiling that 20% of the members of
the House of Representatives shall consist of
party-list representatives.
Three-seat cap
7. The three-seat cap, as a limitation to the
number of seats that a qualified party-list
organization may occupy, remains a valid
statutory device that prevents any party from
dominating the party-list elections.
Twenty Percent Allocation is a Ceiling
8. Neither the Constitution nor R.A. No. 7941
mandates the filling-up of the entire twenty
percent allocation of party-list representatives
found in the Constitution. The twenty percent
allocation of party-list representatives is merely
a ceiling; party-list representatives cannot be
more than 20% of the members of the House of
Representatives.
Allocation of Party List Seats
9. Allocation of Qualified seats (First Round):
(a) The parties shall be ranked from the
highest to the lowest based on the
number of votes they garnered during the
elections.
(b) The parties receiving at least two
percent of the total votes cast for the
party-list system shall be entitled to one
guaranteed seat each.
(c) Fractional seats are disregarded in the
absence of a provision in RA 7941
allowing for a rounding off of fractional
seats.
10. Allocation of Additional seats (Second
Round)
(d) The remaining available seats for
allocation as additional seats are the
maximum seats reserved under the Party
List System (20 percent ceiling) less the
guaranteed or qualified seats.
(e) First, The percentage of votes
garnered by each party-list candidate is
multiplied by the remaining available
seats. The resulting number (integer only,
no rounding up) corresponds to a party's
share in the remaining available seats.
(f) Second, one party-list seat is assigned
to each of the parties next in rank until all
available seats are completely distributed.
128

(g) Finally, apply the three-seat cap to
determine the number of seats each
qualified party-list candidate is entitled.
Major Political Parties
11. Neither the Constitution nor R.A. No. 7941
prohibits major political parties from
participating in the party-list system. Major
political parties are allowed to participate in
party-list elections through their sectoral wings.
12. However, by a vote of 8-7, the Court
decided to continue the ruling
in Veterans disallowing major political parties
from participating in the party-list elections,
directly or indirectly.
36. Case Summary
ARARO Party List vs. Comelec (2013)
G.R. No. 192803 | 2013-12-10
Subject: Courts will decide a case, even if
rendered moot and academic, under
exceptional circumstances; Petitioner is not the
real party in interest; Four inviolable
parameters in the Philippine party list system;
Proper DIVISOR to achieve proportional
representation; BANAT Formula (Old vs New)
Facts:
Petitioner, Alliance for Rural and Agrarian
Reconstruction, Inc., (ARARO) was a duly
accredited party-list under Republic Act No.
7941. It garnered a total of 147,204 votes in
the May 10, 2010 elections and ranked fiftieth
(50th).
The Comelec En Banc sitting as the National
Board of Canvassers initially proclaimed 28
party-list organizations as winners involving a
total of 35 seats guaranteed and additional
seats. The result was based on the Comelecs
count of one 121 Certificates of Canvass or a
total of 29,750,041 votes for the Party-List
System.
Petitioner filed an election protest before the
House of Representatives Electoral Tribunal
(HRET) questioning the Resolution of the
Comelec that proclaimed the 28 winning party-
list groups. Without waiting for the resolution of
the HRET, the petitioner filed the present
Petition for Review on Certiorari with Prayer for
Preliminary Injunction and Temporary
Restraining Order (TRO).
The petition mainly asks the Supreme Court to
modify the interpretation of the formula stated
in BANAT v. COMELEC by making the divisor for
the computation of the percentage
votes, from total number of votes
castminus the votes for the disqualified party-
list candidates, to the total number of votes
cast regardless whether party-list groups are
disqualified.
The petitioner puts in issue the interpretation of
Sections 11 and 12 of Republic Act No. 7941,
which states:
Section 11. Number of Party-List
Representatives. The party-list
representatives shall constitute twenty per
centum (20%) of the total number of the
members of the House of Representatives
including those under the party-list.For
purposes of the May 1998 elections, the first
five (5) major political parties on the basis of
party representation in the House of
Representatives at the start of the Tenth
Congress of the Philippines shall not be entitled
to participate in the party-list system.
In determining the allocation of seats for the
second vote, the following procedure shall be
observed:
(a) The parties, organizations, and coalitions
shall be ranked from the highest to the lowest
based on the number of votes they garnered
during the elections.
(b) The parties, organizations, and coalitions
receiving at least two percent (2%) of the total
votes cast for the party-list system shall be
entitled to one seat each: Provided, That those
garnering more than two percent (2%) of the
votes shall be entitled to additional seats in
proportion to their total number of votes:
Provided, finally, That each party, organization,
or coalition shall be entitled to not more than
three (3) seats.
Section 12. Procedure in Allocating Seats
for Party-List Representatives. The
129
COMELEC shall tally all the votes for the
parties, organizations, or coalitions on a
nationwide basis, rank them according to the
number of votes received and allocate partylist
representatives proportionately according to
the percentage of votes obtained by each
party, organization, or coalition as against the
total nationwide votes cast for the party-list
system.
The petitioner argues that the correct
interpretation of the above provisions does not
distinguish between valid and invalid votes.
Hence, people whose votes were spoiled (like
checking or failure to properly shade the ovals
in the ballots, or voted for two party lists when
the requirement is only one, or had erasures on
their ballots for instance), or did not vote for
any party-list at all are still voters for the party-
list system. The votes for the party-list system
include all those people who voted whether
their votes were counted or not as long as the
mechanism for the selection of party-list is in
place.
The COMELEC, on the other hand, took the
position that invalid or stray votes should not
be counted in determining the divisor. The
COMELEC applied the formula in BANAT v.
COMELEC.
In determining the computation of the correct
divisor to be used. The options are:
A. All votes cast for the party-list
system less the votes cast for
subsequently disqualified party-list groups
and votes declared spoiled
B. The total votes cast
C. The total number of valid votes cast for the
party-list system including votes cast for party-
list groups listed in the ballot even if
subsequently declared disqualified. The divisor
should not include votes that are
declared spoiled or invalid.
Held:
I. Procedural Issues
Courts will decide a case, even if rendered
moot and academic, under exceptional
circumstances
1. A moot and academic case is one that
ceases to present a justiciable controversy by
virtue of supervening events, so that a
declaration thereon would be of no practical
value. As a rule, courts decline jurisdiction over
such case, or dismiss it on ground of mootness.
2. Several supervening events have already
rendered this case moot and academic. First,
the Comelec En Banc already proclaimed other
winning party-list groups. Second, the term of
office of the winning party-list groups in the
May 2010 national elections ended on June 30,
2013. Finally, the conduct of the May 13, 2013
elections resulted in a new set of party-list
groups.
3. The expiration of the challenged term of
office renders the corresponding Petition moot
and academic. This leaves any ruling on the
issues raised by the petitioner with no practical
or useful value.
4. However, the following exceptions to the
rule of declining jurisdiction over moot and
academic cases are allowed: (1) there was a
grave violation of the Constitution; (2) the case
involved a situation of exceptional character
and was of paramount public interest; (3) the
issues raised required the formulation of
controlling principles to guide the Bench, the
Bar and the public; and (4) the case was
capable of repetition yet evading review.
5. On the importance of the assailed formula,
this Court will discuss the issues raised by the
petitioner as these are capable of repetition yet
evading review and for the guidance of the
bench, bar, and public.
Petitioner is not the real party in interest
6. A real party in interest is the party who
stands to be benefited or injured by the
judgement in the suit, or the party entitled to
the avails of the suit. The partys interest must
be direct, substantial, and material.
7. In this case, the petitioner attacks the
validity of the formula used and upheld in
BANAT. It also proposes its own interpretation of
the formula to determine the proportional
representation of party-list candidates in the
130
House of Representatives. However despite any
new computation, ARAROs proposed divisor of
total votes cast for the party-list system,
whether valid or invalid, still fails to secure one
seat for ARARO. Thus, petitioner does not suffer
a direct, substantial or material injury from the
application of the formula interpreted and used
in BANAT in proclaiming the winning party-lists.
The computation proposed by petitioner ARARO
even lowers its chances to meet the 2%
threshold required by law for a guaranteed
seat. Its arguments will neither benefit nor
injure the party. Thus, it has no legal standing
to raise the argument in this Court.
II. Substantive Issues
Four inviolable parameters in the
Philippine party list system
8. Veterans Federation Party v. Commission on
Elections laid down the four inviolable
parameters in determining the winners in a
Philippine-style party-list election based on a
reading of the Constitution and Republic Act No.
7941:
First, the twenty percent allocation - the
combined number of all party-list congressmen
shall not exceed twenty percent of the total
membership of the House of Representatives,
including those elected under the party list.
Second, the two percent threshold - only
those parties garnering a minimum of two
percent of the total valid votes cast for the
party-list system are qualified to have a seat
in the House of Representatives.
Third, the three-seat limit - each qualified
party, regardless of the number of votes it
actually obtained, is entitled to a maximum of
three seats; that is, one qualifying and two
additional seats.
Fourth, proportional representation - the
additional seats which a qualified party is
entitled to shall be computed in proportion to
their total number of votes.
9. In Veterans, the court stated that the 20%
requirement in the Constitution is merely a
ceiling.
10. In BANAT vs. COMELEC, the court declared
the 2% threshold in relation to the distribution
of the additional seats as void. The
interpretation that only those that obtained at
least 2% of the votes may get additional seats
will not result in proportional
representation because it will make it
impossible for the party-list seats to be filled
completely. In short, the 20% share may never
be filled if the 2% threshold is maintained.
11. The most recent Atong Paglaum v.
COMELEC does not in any way modify the
formula set in Veterans. It only corrects the
definition of valid party-list groups. The court
affirmed that party-list groups may be national,
regional, and sectoral parties or organizations.
The court abandoned the requirement
introduced in Ang Bagong Bayani that all party-
list groups should prove that they represent a
marginalized or under-represented sector.
Proper DIVISOR to achieve proportional
representation (Option C)
12. The divisor helps to determine the correct
percentage of representation of party-list
groups as intended by the law. It measures the
relation between the share of the total seats
and the share of the total votes of the party-list.
13. The petitioner ARARO argues that the votes
of all the registered voters who actually voted
in the May 2010 elections should be included in
the computation of the divisor whether valid or
invalid. Invalid votes include those votes that
were made for disqualified party-list groups,
votes that were spoiled due to improper
shading, erasures in the ballots, and even those
that did not vote for any party-list candidate at
all. All of the votes should be included in the
divisor to determine the 2% threshold.
14. The court agrees with the petitioner but
only to the extent that votes later
on determined to be invalid due to no cause
attributable to the voter should not be excluded
in the divisor. In other words, votes
cast validly for a party-list group listed in the
ballot but later on disqualified should
be counted as part of the divisor. To do
otherwise would be to disenfranchise the voters
who voted on the basis of good faith that that
131
ballot contained all the qualified candidates.
Definitely, it is not the voters fault that the
party-list group in the ballot it votes for will be
subsequently disqualified. The voter should not
be penalized.
15. However, following this rationale, party-list
groups listed in the ballot but
whose disqualification attained finality prior to
the elections and whose disqualification
was reasonably made known by the
Commission on Elections to the voters prior to
such elections should not be included in the
divisor. The votes cast in favor of a candidate
disqualified with finality should be considered
stray and not be counted. (see Cayat v.
Commission on Elections)
16. Not all votes cast in the elections should be
included in the divisor. Contrary to the
argument of the petitioner, Section 11(b) of
Republic Act No. 7941 is clear that only those
votes cast for the party-list system shall be
considered in the computation of the
percentage of representation.
17. The total votes cast do not include invalid
votes. The invalid votes, for the determination
of the denominator, may be votes that were
spoiled or votes that resulted from the
following: improper shading or having no shade
at all; existence of stray or ambiguous marks;
tears in the ballot; and/or ballots rejected by
the Precinct Count Optical Scan (PCOS)
machines under the paper-based automated
election system. All these are causes that
nullify the count for that vote that can be
attributable to the voters action.
BANAT Formula (Old vs New)
18. Comelec applied the (old) formula used
in BANAT vs. COMELEC to arrive at the
winning party-list groups and their guaranteed
seats, where:
[No. of votes of the Party List / Total No. of votes
for party-list candidates] = % of votes garnered
by the Party List
19. Under the present ruling, the (new or
modified) formula to determine the proportion
garnered by the partylist group would now be:
[No. of votes of the Party List / Total No.
of VALID votes for party-list candidates] = % of
votes garnered by the Party List
20. The divisor shall be the total number
of valid votes cast for the partylist system.
The DIVISOR shall INCLUDE:
(a) votes cast for party-list groups whose
names are in the ballot but are subsequently
disqualified.
The DIVISOR shall NOT INCLUDE:
(a) votes cast for party-list groups listed in the
ballot but whose disqualification attained
finality prior to the elections and whose
disqualification was reasonably made known by
the Commission on Elections to the
votersprior to such elections
(b) votes that are declared spoiled or invalid.
37. Case Summary
Goh vs. Bayron and Comelec (2014)
G.R. No. 212584 | 2014-11-25
Subject: COMELECs Fiscal Autonomy;
Expenditures for the conduct of recall
electionsis deemed covered under COMELEC
appropriations for operating expenditures; The
requirement that an appropriation 'must be for
a specific purpose' is satisfied even if the
indicated purpose is capable of further
specification; COMELEC Chairman's authority to
fund recall elections from savings;
Facts:
In March 2014, Alroben J. Goh filed before the
COMELEC a recall petition against Mayor Lucilo
R. Bayron, the incumbent mayor of Puerto
Princesa City, due to loss of trust and
confidence brought about by gross violation of
pertinent provisions of the Anti-Graft and
Corrupt Practices Act, gross violation of
pertinent provisions of the Code of Conduct and
Ethical Standards for Public Officials,
Incompetence, and other related gross
inexcusable negligence/dereliction of duty,
intellectual dishonesty and emotional
immaturity.
132

The COMELEC promulgated Resolution No. 9864
which found the recall petition sufficient in form
and substance, but suspended further
proceedings on recall until the funding issue
raised by the Finance Services Department
shall have been resolved.
Mayor Bayron filed with the COMELEC an
Motion for Reconsideration and prayed for the
dismissal of the recall petition.
The COMELEC promulgated Resolution No. 9882
which suspended any proceeding relative to
recall as the recall process does not have an
(line item) appropriation in the General
Appropriations Act of 2014 (2014 GAA) and the
2014 GAA does not provide the COMELEC with
legal authority to commit public funds for the
recall process. The COMELEC concluded that
until a law is passed by Congress
appropriating funds for recall elections either
by approving the Commissions budget
proposal for FY 2015 or through a supplemental
(special) appropriation for FY 2014 any
proceeding relative to the instant petition for
recall should be suspended further.
Goh filed the present Petition challenging the
above COMELEC Resolutions.
Held:
1. The COMELEC committed grave abuse of
discretion in issuing Resolution Nos. 9864 and
9882. The 2014 GAA provides the line item
appropriation to allow the COMELEC to perform
its constitutional mandate of conducting recall
elections. There is no need for supplemental
legislation to authorize the COMELEC to
conduct recall elections for 2014.
COMELECs Fiscal Autonomy
2. The 1987 Constitution expressly provides
the COMELEC with the power to [e]nforce and
administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative,
referendum, and recall. The 1987 Constitution
not only guaranteed the COMELECs fiscal
autonomy, but also granted its head (COMELEC
Chairman) as authorized by law, to augment
items in its appropriations from its savings. The
2014 GAA provides such authorization to the
COMELEC Chairman.
Expenditures for the conduct of recall
electionsis deemed covered under
COMELEC appropriations for operating
expenditures
3. Despite Resolution No. 9882s statement
about the alleged failure of the 2014 GAA to
provide for a line item appropriation for the
conduct of recall elections, the court holds
that the 2014 GAA actually expressly provides
for a line item appropriation for the conduct
and supervision of recall elections. This is found
in the Programs categoryof its 2014 budget,
which the COMELEC admits in its Resolution No.
9882 is a line item for the Conduct and
supervision of elections, referenda, recall votes
and plebiscites.
4. In addition, one of the specific constitutional
functions of the COMELEC is to conduct recall
elections. When the COMELEC receives a
budgetary appropriation for its Current
Operating Expenditures, such appropriation
includes expenditures to carry out its
constitutional functions, including the conduct
of recall elections.
5. In Socrates vs. COMELEC, recall elections
were conducted even without a specific
appropriation for recall elections in the 2002
GAA. [Thus], we find it difficult to justify the
COMELECs reasons why it is unable to conduct
recall elections in 2014 when the COMELEC was
able to conduct recall elections in 2002 despite
lack of the specific words Conduct and
supervision of ...recall votes in the 2002 GAA.
In facts, in the 2002 GAA, the phrase Conduct
and supervision of elections and other political
exercises was sufficient to fund the conduct of
recall elections. In the 2014 GAA, there is
a specific line item appropriation for the
Conduct and supervision of ... recall votes .
The requirement that an appropriation
'must be for a specific purpose' is satisfied
even if the indicated purpose is capable of
further specification
6. To be valid, an appropriation must indicate a
specific amount and a specific purpose.
However, the purpose may be specific even if it
is broken down into different related sub-
133
categories of the same nature. For example,
the purpose can be to conduct elections,
which even if not expressly spelled out
covers regular, special, or recall elections. The
purpose of the appropriation is still specific to
fund elections, which naturally and logically
include, even if not expressly stated, not only
regular but also special or recall elections.
7. The constitutional test for validity is not how
itemized the appropriation is down to the
project level but whether the purpose of the
appropriation is specific enough to allow the
President to exercise his line-item veto power.
Section 23, Chapter 4, Book VI of the
Administrative Code provides a stricter
requirement by mandating that there must be a
corresponding appropriation for each program
and for each project. A project is a component
of a program which may have several projects.
A program is equivalent to the specific purpose
of an appropriation. An item of appropriation for
school-building is a program, while the specific
schools to be built, being the identifiable
outputs of the program, are the projects. The
Constitution only requires a corresponding
appropriation for a specific purpose or program,
not for the sub-set of projects or activities. We
thus find unnecessary the COMELECs protests
regarding the difference between Projects
and Programs for their failure to allocate
funds for any recall process in 2014.
COMELEC Chairman's authority to fund
recall elections from savings
8. Despite the PhP2 billion to PhP10.7 billion
savings existing in the COMELECs coffers, the
COMELEC asserts that it cannot legally fund the
exercise of recall elections. The power to
augment from savings lies dormant until
authorized by law.
9. The 2014 GAA provides a line item
appropriation for the COMELECs conduct of
recall elections. Since the COMELEC now admits
that it does not have sufficient funds from its
current line item appropriation for the Conduct
and supervision of..recall votes to conduct an
actual recall election, then there is therefore an
actual deficiency in its operating funds for the
current year. This is a situation that allows for
the exercise of the COMELEC Chairmans power
to augment actual deficiencies in the item for
the Conduct and supervision of ..recall votes
in its budget appropriation.
10. Contrary to the COMELECs assertion,
the appropriations for personnel services and
maintenance and other operating
expenses falling under Conduct and
supervision of elections, referenda, recall votes
and plebiscitesconstitute a line item which can
be augmented from the COMELECs savings to
fund the conduct of recall elections in 2014.
The conduct of recall elections requires only
operating expenses, not capital outlays. The
COMELECs existing personnel in Puerto
Princesa are the same personnel who will
evaluate the sufficiency of the recall petitions
and conduct the recall elections.
11. Moreover, the line item appropriation for
the Conduct and supervision of x x x recall
votes x x x in the 2014 GAA is sufficient to
fund recall elections. There is no constitutional
requirement that the budgetary appropriation
must be loaded in contingent funds. The
Congress has plenary power to lodge such
appropriation in current operating expenditures.
38. Case Summary
Gaminde vs. COA (2000)
G.R. No. 140335 | 2000-12-13
Subject: Rotational system of appointment;
Term vs Tenure; Gaminde is bound by the term
of the appointment she accepted which expired
on February 2, 1999; Gaminde entitled to
receive salaries and emoluments for period
served as de fact officer in good faith
Facts:
On June 11, 1993, the President of the
Philippines appointed petitioner Thelma P.
Gaminde, ad interim, as Commissioner of the
Civil Service Commission (CSC). She assumed
office after taking an oath of office.
Subsequently, the Commission on Appointment
confirmed her appointment. The appointment
paper stated that: you are hereby appointed,
ad interim, COMMISSIONER, CIVIL SERVICE
COMMISSION, for a term expiring February 2,
1999.
On February 24, 1998, petitioner sought
clarification from the Office of the President as
134
to the expiry date of her term of office. The
Chief Presidential Legal Counsel opined that
petitioner's term of office would expire on
February 2, 2000, not on February 2, 1999.
Relying on said advisory opinion, petitioner
remained in office after February 2, 1999. CSC
Chairman de Leon wrote the Commission on
Audit (COA) requesting an opinion on whether
or not Commissioner Gaminde and her co-
terminous staff may be paid their salaries
notwithstanding the expiration of their
appointments on February 2, 1999.
The COA General Counsel issued an opinion
that the term of Commissioner Gaminde has
expired on February 2, 1999 as stated in her
appointment papers.
Consequently, the CSC Resident Auditor issued
a notice of disallowance on the salaries and
emoluments pertaining to petitioner Gaminde
and her co-terminous staff, effective February
2, 1999.
Petitioner appealed the disallowance to the
COA en banc but the COA affirmed the
propriety of the disallowance, holding that
petitioner's term of office is stated in her
appointment paper which set the expiration
date on February 2, 1999, and that COA is
bereft of power to recognize an extension of her
term, not even with the implied acquiescence
of the Office of the President. Motion for
reconsideration was denied. Hence, the present
petition.
Held:
Rotational system of appointment
1. The term of office of the Chairman and
members of the Civil Service Commission is
prescribed in under Article IX, 1987
Constitution, as follows:
"Section 1 (2). The Chairman and the
Commissioners shall be appointed by the
President with the consent of the Commission
on Appointments for a term of seven years
without reappointment. Of those first
appointed, the Chairman shall hold office for
seven years, a Commissioner for five years, and
another Commissioner for three years, without
reappointment. Appointment to any vacancy
shall be only for the unexpired term of the
predecessor. In no case shall any Member be
appointed or designated in a temporary or
acting capacity.
2. The rotational system for the appointment of
CSC members was first introduced under the
1973 Constitution. The operation of the
rotational plan requires two conditions, both
indispensable to its workability:
(a) that the terms of the first three (3)
Commissioners should start on a common date,
and,
(b) that any vacancy due to death, resignation
or disability before the expiration of the term
should only be filled only for the unexpired
balance of the term. (see Republic vs. Imperial)
3. Applying the foregoing conditions to the
case at bar, the appropriate starting point of
the terms of office of the first appointees to the
Constitutional Commissions under the 1987
Constitution must be on February 2, 1987, the
date of the adoption of the 1987 Constitution.
In case of a belated appointment or
qualification, the interval between the start of
the term and the actual qualification of the
appointee must be counted against the latter.
Term vs Tenure
4. In the law of public officers, there is a settled
distinction between "term" and "tenure." "The
term of an office must be distinguished from
the tenure of the incumbent. The 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 tenure represents the
term during which the incumbent actually holds
the office. The term of office is not affected by
the hold-over. The tenure may be shorter than
the term for reasons within or beyond the
power of the incumbent.
5. Article XVIII, Transitory Provisions, 1987
Constitution provides:
"SEC. 15. The incumbent Members of the Civil
Service Commission, the Commission on
Elections, and the Commission on Audit shall
continue in office for one year after the
135
ratification of this Constitution, unless they are
sooner removed for cause or become
incapacitated to discharge the duties of their
office or appointed to a new term thereunder. In
no case shall any Member serve longer than
seven years including service before the
ratification of this Constitution."
6. What the above quoted Transitory Provisions
contemplate is "tenure" not "term" of the
incumbent Chairmen and Members of the Civil
Service Commission, the Commission on
Elections and the Commission on Audit, who
"shall continue in office for one year after the
ratification of this Constitution, unless they are
sooner removed for cause or become
incapacitated to discharge the duties of their
office or appointed to a new term thereunder."
The term "unless" imports an exception to the
general rule. Clearly, the transitory provisions
mean that the incumbent members of the
Constitutional Commissions shall continue in
office for one year after the ratification of this
Constitution under their existing appointments
at the discretion of the appointing power, who
may cut short their tenure by: (1) their removal
from office for cause; (2) their becoming
incapacitated to discharge the duties of their
office, or (3) their appointment to a new term
thereunder, all of which events may occur
before the end of the one year period after the
effectivity of the Constitution.
7. However, the transitory provisions do not
affect the term of office fixed in Article IX,
providing for a seven-five-three year rotational
interval for the first appointees under this
Constitution.
Gaminde is bound by the term of the
appointment she accepted which expired
on February 2, 1999
8. Gaminde is bound by the term of the
appointment she accepted, expiring February 2,
1999. In this connection, the letter of Deputy
Executive Secretary Renato Corona clarifying
that her term would expire on February 2, 2000,
was in error. What was submitted to the
Commission on Appointments was a nomination
for a term expiring on February 2, 1999. Thus,
the term of her successor must be deemed to
start on February 2, 1999, and expire on
February 02, 2006.
Gaminde entitled to receive salariesand
emoluments for period served as de fact
officer in good faith
9. However, she served as de facto officer in
good faith until February 02, 2000, and thus
entitled to receive her salary and other
emoluments for actual service rendered.
Consequently, the Commission on Audit erred
in disallowing in audit such salary and other
emoluments, including that of her co-terminous
staff.
39.Case Summary
Funa vs MECO and COA (2014)
G.R. No. 193462 | 2014-02-04
Subject: Petition, even if rendered moot and
academic by supervening events, may still be
decided upon under exceptional circumstances;
Legal standing of petitioner as a citizen; Audit
jurisdiction of the COA; MECO is Not a GOCC or
a Government Instrumentality; MECO is
organized as a Non-Stock Corporation; MECO
performs functions with a public aspect; MECO
is Not owned or controlled by the Government;
MECO is a Sui Generis entity; Certain accounts
of MECO (Verification Fees and Consular Fees)
are subject to audit by the COA;
Facts:
After the Chinese civil war, China was faced
with two (2) governments: (i) the communist
Peoples Republic of China (PROC) which
controls the mainland territories, and (ii) the
nationalist Republic of China (ROC) which
controls the island of Taiwan. Both the PROC
and ROC adhered to a policy of One China
i.e., the view that there is only one legitimate
government in China, but differed in their
respective interpretation as to which that
government is.
The Philippines formally ended its official
diplomatic relations with the government in
Taiwan on 9 June 1975, when the Philippines
and the PROC expressed mutual recognition
thru the Joint Communiqu between the two
countries.
However, this did not preclude the Philippines
from keeping unofficial relations with Taiwan on
136
a people-to-people basis. Maintaining ties
with Taiwan that is permissible by the terms of
the Joint Communiqu required the Philippines
and Taiwan to course any such relations thru
offices outside of the official or governmental
organs.
Hence, on the part of the Philippines, the Manila
Economic and Cultural Office (MECO) was
established as a nonstock, non-profit
corporation. The MECO became the corporate
entity entrusted by the Philippine government
with the responsibility of fostering friendly
and unofficial relations with the people of
Taiwan. It is the MECO that oversees the rights
and interests of Overseas Filipino Workers
(OFWs) in Taiwan; promotes the Philippines as a
tourist and investment destination for the
Taiwanese; and facilitates the travel of Filipinos
and Taiwanese from Taiwan to the Philippines,
and vice versa.
In August 2010, petitioner Dennis Funa sent a
letter to the COA requesting for a copy of the
latest financial and audit report of the MECO
invoking, for that purpose, his constitutional
right to information on matters of public
concern. The petitioner made the request on
the belief that the MECO, being under the
operational supervision of the Department of
Trade and Industry (DTI), is a government
owned and controlled corporation (GOCC) and
thus subject to the audit jurisdiction of the COA.
Assistant COA Commissioner Naranjo revealed
in a memorandum that the MECO was not
among the agencies audited by any of the
three Clusters of the Corporate Government
Sector. Taking the memorandum as an
admission that the COA had never audited and
examined the accounts of the MECO, petitioner
Funa filed the instant petition for mandamus in
his capacities as taxpayer, concerned citizen,
a member of the Philippine Bar and law book
author.
This petition for mandamus seeks to compel
the Commission on Audit (COA) to audit and
examine the funds of MECO, and the MECO to
submit to such audit and examination.
Petitioner posits that all accounts of the MECO
are auditable as the latter is a bona fide GOCC
or government instrumentality. On the other
hand, the COA argues that only the accounts of
the MECO that pertain to the verification fees
it collects on behalf of the DOLE are auditable
because the former is merely a non-
governmental entity required to pay xxx
government share per the Audit Code.
Held:
Petition, even if rendered moot and
academic by supervening events, may still
be decided upon under exceptional
circumstances
1. The COA claims that by issuing Office Order
No. 2011-698, it had already conceded its
jurisdiction over the accounts of the MECO and
so fulfilled the objective of the instant petition.
The COA thus urges that the instant petition be
dismissed for being moot and academic.
2. A case is deemed moot and academic when,
by reason of the occurrence of a supervening
event, it ceases to present any justiciable
controversy. Since they lack an actual
controversy otherwise cognizable by courts,
moot cases are, as a rule, dismissible.
3. The rule that requires dismissal of moot
cases, however, is not absolute. It is subject
to exceptions. Courts will decide cases,
otherwise moot and academic, if:
(i) there is a grave violation of the Constitution;
(ii) the exceptional character of the situation
and the paramount public interest is involved;
(iii) when constitutional issue raised requires
formulation of controlling principles to guide the
bench, the bar, and the public;
(iv) the case is capable of repetition yet
evading review. (see David v. Macapagal-
Arroyo)
4. The issuance by the COA of Office Order No.
2011-698 indeed qualifies as a supervening
event that effectively renders moot and
academic the main prayer of the instant
mandamus petition. A writ of mandamus to
compel the COA to audit the accounts of the
MECO would certainly be a mere superfluity,
when the former had already obliged itself to
do the same.
137

5. Be that as it may, this Court refrains from
dismissing outright the petition. We believe that
the mandamus petition was able to craft
substantial issues presupposing the commission
of a grave violation of the Constitution and
involving paramount public interest. An
allegation as serious as a violation of a
constitutional or legal duty, coupled with the
pressing public interest in the resolution of all
related issues, prompts this Court to pursue a
definitive ruling thereon, if not for the proper
guidance of the government or agency
concerned, then for the formulation of
controlling principles for the education of the
bench, bar and the public in general. For this
purpose, the Court invokes its symbolic
function. Moreover, the inclusion of the MECO
in Office Order No. 2011-698 appears to be
entirely dependent upon the judgment of the
incumbent chairperson of the COA, susceptible
of being undone, with or without reason, by her
or even her successor. Hence, the case now
before this Court is dangerously capable of
being repeated yet evading review.
Legal standing of petitioner as a citizen
6. Petitioner has standing, as a concerned
citizen, to file the instant petition for
mandamus.
7. The rules regarding legal standing in
bringing public suits, or locus standi, are
already well-defined in our case law. Standing
to sue is accorded provided that the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of
illegal disbursement of public funds or that the
tax measure is unconstitutional;
(3) for voters, there must be a showing of
obvious interest in the validity of the election
law in question;
(4) for concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim that
the official action complained of infringes upon
their prerogatives as legislators.
8. The instant petition raises issues
transcendental importance, involved as they
are with the performance of a constitutional
duty, allegedly neglected, by the COA.
Hence, petitioner, as a concerned citizen, has
the requisite legal standing to file the instant
mandamus petition.
9. Petitioner does not need to make any prior
demand on the MECO or the COA in order to
maintain the instant petition. The duty of the
COA sought to be compelled by mandamus,
emanates from the Constitution and law, which
explicitly require, or demand, that it perform
the said duty. To the mind of this Court,
petitioner already established his cause of
action against the COA when he alleged that
the COA had neglected its duty in violation of
the Constitution and the law.
Audit jurisdiction of the COA
10. Under Section 2(1) of Article IX-D of
the 1987 Constitution, the COA was vested
with the power, authority and duty to
examine, audit and settle the accounts of
the following entities:
(a) The government, or any of its subdivisions,
agencies and instrumentalities;
(b) GOCCs with original charters;
(c) GOCCs without original charters;
(d) Constitutional bodies, commissions and
offices that have been granted fiscal autonomy
under the Constitution; and
(e) Non-governmental entities receiving subsidy
or equity, directly or indirectly, from or through
the government, which are required by law or
the granting institution to submit to the COA for
audit as a condition of subsidy or equity.
11. The term accounts mentioned in the
subject constitutional provision pertains to the
revenue, receipts, expenditures and
uses of funds and property of the foregoing
entities.
12. Complementing the constitutional power of
the COA to audit accounts of non-
governmental entities receiving subsidy or
equity xxx from or through the government
is Section 29(1) of the Audit Code, which
grants theCOA visitorial authority over the
following nongovernmental entities:
of
138
(a) Non-governmental entities subsidized by
the government
(b) Non-governmental entities required to pay
levy or government share
(c) Non-governmental entities that have
received counterpart funds from the
government, and
(d) Non-governmental entities partly funded
by donations through the government.
13. Section 29(1) of the Audit Code, however,
limits the audit of the foregoing non-
governmental entities only to funds xxx
coming from or through the government. This
section of the Audit Code is,in turn,
substantially reproduced in Section 14(1), Book
V of the Administrative Code.
14. In addition, the Administrative Code also
empowers the COA to examine and audit the
books, records and accounts of public utilities
in connection with the fixing of rates of every
nature, or in relation to the proceedings of the
proper regulatory agencies, for purposes of
determining franchise tax.
MECO is Not a GOCC or a Government
Instrumentality
15. Government instrumentalities are agencies
of the national government that, by reason of
some special function or jurisdiction they
perform or exercise, are allotted operational
autonomy and are not integrated within the
department framework. Subsumed under the
rubric government instrumentality are the
following entities:
1. Regulatory agencies,
2. Chartered institutions,
3. Government corporate entities (GCE) or
government
Instrumentalities with corporate powers (GICP),
and
4. GOCCs
16. The Administrative Code defines a GOCC
(as reiterated in Republic Act No. 10149 or the
GOCC Governance Act of 2011):
(13) Government-owned or controlled
corporation refers to any agency organized as
a stock or non-stock corporation, vested with
functions relating to public needs whether
governmental or proprietary in nature, and
owned by the Government directly or through
its instrumentalities either wholly, or, where
applicable as in the case of stock corporations,
to the extent of at least fifty-one (51) per cent
of its capital stock: x x x.
17. GOCCs, therefore, are stock or non-stock
corporations vested with functions relating to
public needs that are owned by the
Government directly or through its
instrumentalities. By definition, three
attributes thus make an entity a GOCC:
(i) Its organization as stock or Non-stock
Corporation
(ii) The public character of its function;
(iii) Government ownership over the same.
18. Possession of all three attributes is
necessary to deem an entity a GOCC.
19. In this case, MECO possesses the first and
second attributes. It is the third attribute, which
the MECO lacks.
MECO is organized as a Non-Stock
Corporation (1st GOCC attribute present)
20. MECO was incorporated as a non-stock
corporation under the Corporation Code. The
purposes for which the MECO was organized
are somewhat analogous to those of a trade,
business or industry chamber, but only on a
much larger scale i.e., instead of furthering the
interests of a particular line of business or
industry within a local sphere, the MECO seeks
to promote the general interests of the Filipino
people in a foreign land. Finally, none of the
income derived by the MECO is distributable as
dividends to any of its members, directors or
officers.
MECO performs functions with a public
aspect (2nd GOCC attribute present)
21. Consistent with its corporate purposes, the
MECO was authorized by the Philippine
government to perform certain consular and
other functions relating to the promotion,
protection and facilitation of Philippine interests
in Taiwan. (see Sections 1 and 2 of EO No. 15,
s. 2001)
139

22. The functions of the MECO bears an
uncanny similarity to some of the functions
typically performed by the DFA itself, through
the latters diplomatic and consular
missions.The functions of the MECO, in other
words, are of the kind that would otherwise be
performed by the Philippines own diplomatic
and consular organs, if not only for the
governments acquiescence that they instead
be exercised by the MECO. Evidently, the
functions vested in the MECO are impressed
with a public aspect.
MECO is Not owned or controlled by the
Government (3rd GOCC attribute ABSENT)
23. The government owns a stock or non-stock
corporation if it has controlling interest in the
corporation. In astock corporation, the
controlling interest of the government is
assured by its ownership of at least fifty-one
percent (51%) of the corporate capital stock. In
a non-stock corporation, like the MECO,
jurisprudence teaches that the controlling
interest of the government is affirmed when at
least majority of the members are government
officials holding such membership by
appointment or designation or there is
otherwise substantial participation of the
government in the selection of the
corporations governing board.
24. Petitioner argues that the government has
controlling interest in the MECO because it is
the President of the Philippines that indirectly
appoints the directors of the corporation thru
desire letters addressed to the corporations audit by the COA
board.
25. The desire letters that the President
transmits are merely recommendatory and not
binding on MECO. The MECO maintains that, as
a corporation organized under the Corporation
Code, matters relating to the election of its
directors and officers, as well as its
membership, are ultimately governed by the
appropriate provisions of the said code, its
articles of incorporation and its by-laws.
26. It is significant to note that none of the
original incorporators of the MECO were shown
to be government officials at the time of the
corporations organization. Indeed, none of the
members, officers or board of directors of the
MECO, from its incorporation up to the present
day, were established as government
appointees or public officers designated by
reason of their office. There is, in fact, no law or
executive order that authorizes such an
appointment or designation. Hence, from a
strictly legal perspective, it appears that the
presidential desire letters are, no matter how
strong its persuasive effect may be, merely
recommendatory.
MECO is a Sui Generis entity
27. The exclusion of the MECO from a GOCC
makes it easier to exclude the same from any
other class of government instrumentality. The
other government instrumentalities i.e., the
regulatory agencies, chartered institutions and
GCE/GICP are all, by explicit or implicit
definition, creatures of the law. The MECO
cannot be any other instrumentality because it
was merely incorporated under the Corporation
Code.
28. Nonetheless, MECO is uniquely situated as
compared with other private corporations. From
its overreaching corporate objectives, its
special duty and authority to exercise certain
consular functions, up to the oversight by the
executive department over its operationsall
the while maintaining its legal status as a non-
governmental entitythe MECO is, for all
intents and purposes, sui generis.
Certain accounts of MECO (Verification
Fees and Consular Fees) are subject to
29. Despite being a non-governmental entity,
the MECO may still be audited with respect to
the verification feesfor overseas employment
documents that the MECO collects from
Taiwanese employers on behalf of the DOLE.
The verification fees refers to the service fee
for the verification of overseas employment
contracts, recruitment agreement or special
powers of attorney that the DOLE was
authorized to collect under Section 7 of EO No.
1022. Since the Philippines does not maintain
an official post in Taiwan, the DOLE entered into
140
a series of Memorandum of Agreements with
the MECO, which made MECO the DOLEs
collecting agent with respect to the verification
fees that may be due from Taiwanese
employers of OFW.
30. Aside from the DOLE verification fees,
however, the MECO also collects consular
fees, or fees it collects from the exercise of its
delegated consular functions (Issuance of
temporary visitors visa, etc.) . The consular
fees, although held and expended by the
MECO by virtue of EO No. 15, s. 2001, are,
without question, derived from the exercise by
the MECO of consular functionsfunctions it
performs by and only through special authority
from the government. The visas, passports and
other documents that the MECO issues
pursuant to its authorized functions still
emanate from the Philippine government itself.
It is the government that has ultimate control
over the disposition of the consular fees,
which control the government did exercise
when it provided in Section 2(6) of EO No. 15, s.
2001 that such funds may be kept by the MECO
to defray the cost of its operations.
31. Section 14(1), Book V of the Administrative
Code authorizes the COA to audit accounts of
non-governmental entities required to pay ...or
have government share but only with respect
to funds xxx coming from or through the
government. This provision of law perfectly fits
the MECO.
32. The Memorandum of Agreement between
the DOLE and the MECO and Section 2(6) of EO
No. 15, s. 2001, vis--vis, respectively, the
verification fees and the consular fees,
grant and at the same time limit the authority
of the MECO to collect such fees. That grant
and limit require the audit by the COA of the
collections thereby generated.
40. Case Summary
Santiago vs Comelec (1997)
G.R. No. 127325 | 1997-03-19
Subject:
Initiative and Referendum
Facts:
Under the 1935 and 1973 Constitutions, only
two methods of proposing amendments to, or
revision of, the Constitution were recognized:
(1) by Congress upon a vote of three-fourths of
all its members and (2) by a constitutional
convention.
Under the 1987 Constitution, in Section 2 of
Article XVII, the system of initiative was
introduced through which the people may
directly propose amendments to the
Constitution.
In 1996, Atty. Jesus Delfin filed with COMELEC a
"Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's
Initiative" (Delfin Petition)
The Delfin Petition alleged that the provisions
sought to be amended are Sections 4 and 7 of
Article VI, Section 4 of Article VII, and Section 8
of Article X of the Constitution. Attached to the
petition is a copy of a "Petition for Initiative on
the 1987 Constitution" embodying the
proposed amendments. It moved that Comelec
fix the time and dates for signature gathering.
After it is signed by at least twelve per cent of
the total number of registered voters in the
country it will be formally filed with the
COMELEC
Senator Roco filed a Motion to Dismiss
contending that the Delfin Petition is not the
initiatory petition properly cognizable by the
COMELEC. What vests jurisdiction upon the
COMELEC is the filing of a petition for initiative
which is already signed by the required number
of registered voters. Proponents of a
constitutional amendment cannot avail of the
authority and resources of the COMELEC to
assist them in securing the required number of
signatures.
Senator Miriam Defensor Santiago and others
filed an action for prohibition raising the
argument that: (1) The constitutional provision
on people's initiative to amend the Constitution
can only be implemented by law and no such
law has been passed. While Republic Act 6735
provides for three systems of initiative (on the
Constitution, on statutes, and on local
legislation), however, said law is inadequate
with respect to a system of initiative on the
Constitution. (2) The people's initiative is
141
limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term
limits constitutes a revision and is, therefore,
outside the power of the people's initiative
Held:
System of Initiative
1. The system of initiative on the Constitution
under Section 2 of Article XVII of the
Constitution is not self-executory.
2. While the Constitution has recognized or
granted the right of the people to directly
propose amendments to the Constitution
through the system of initiative, the people
cannot exercise it if Congress, for whatever
reason, does not provide for its implementation
by way of a law or statute.
3. Based on the interpellations of the 1986
Constitutional Commission which drafted the
1987 Constitution,initiative can only relate
to "amendments" not "revision of the
Constitution. Moreover, the process of
proposing amendments to the Constitution
through initiative must be more rigorous and
difficult than the initiative on legislation.
RA 6735 is Inadequate to cover the
System of Initiative on the Constitution
4. RA 6735 was, as its history reveals, intended
to cover initiative to propose amendments to
the Constitution. However, RA 6735 is
incomplete, inadequate, or wanting in
essential terms and conditions insofar as
initiative on amendments to the
Constitution is concerned.
5. Although Section 3 (Definition of Terms) of RA
6753 defines initiative on amendments to the
Constitution, itdoes not provide for the contents
of a petition for initiative on the Constitution.
Other provisions of the Act cannot be made to
apply to fill in the gap since these provisions
expressly refer to proposed laws sought to be
enacted, approved or rejected, amended or
repealed
6. While RA 6735 provides separate Subtitles
for initiative and referendum on laws and
ordinances, no subtitle is provided for initiative
on the Constitution. This omission means that
the main thrust of RA 6753 is initiative and
referendum on national and local laws. If
Congress intended RA 6735 to fully provide for
the implementation of the initiative on
amendments to the Constitution, it could have
provided for a subtitle therefor.
7. This deliberate omission indicates that the
matter of people's initiative to amend the
Constitution was left to some separate and
future law.
Subordinate Legislation (Delegation to fill
in gaps in the law)
8. The rule is that what has been delegated,
cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest.
9. The recognized exceptions to the rule are
as follows:
(1) Delegation of tariff powers to the President
under Section 28(2) of Article VI of the
Constitution;
(2) Delegation of emergency powers to the
President under Section 23(2) of
Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies
10. The delegation is valid only if the
law (a) is complete in itself, setting forth
therein the policy to be executed, carried out,
or implemented by the delegate; and (b) fixes
a sufficient standard - the limits of which are
sufficiently determinate and determinable - to
which the delegate must conform in the
performance of his functions.
11. A sufficient standard is one which defines
legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to
apply it. It indicates the circumstances under
which the legislative command is to be
effected.
Invalid Delegation to Comelec (Lack of
Sufficient Standard)
12. The deficiency of RA 6735 are fatal and
142
cannot be cured by "empowering" the
COMELEC "to promulgate such rules and
regulations as may be necessary to carry out
the purposes of the Act.
13. Empowering the COMELEC, an
administrative body exercising quasi-judicial
functions, to promulgate rules and regulations
is a form of delegation of legislative authority.
However, in every case of permissible
delegation, there must be a showing that the
delegation itself is valid.
14. RA 6735 failed to satisfy both requirements
in subordinate legislation (completeness test
and sufficient standard test). The delegation
of the power to the COMELEC is then invalid.
Necessarily, COMELEC cannot validly
promulgate rules and regulations to implement
the exercise of the right of the people to
directly propose amendments to the
Constitution through the system of initiative. It
does not have that power under R.A. No. 6735
Petition for Initiative to Propose
Amendments on the Constitution
15. Under Section 2 of Article XVII of the
Constitution and Section 5(b)of RA 6735, a
petition for initiative on the Constitution
must be signed by at least 12% of the
total number of registered voters of which
every legislative district is represented by
at least 3% of the registered voters
therein. The Delfin Petition does not contain
signatures of the required number of voters.
Delfin admits that the purpose of his petition is
primarily to obtain assistance in his drive to
gather signatures. Without the required
signatures, the petition cannot be deemed
validly initiated.
16. Since the Delfin Petition is not the initiatory
petition under RA 6735 and COMELEC
Resolution No. 2300, it cannot be entertained or
given cognizance of by the COMELEC.
17. Given the foregoing, the court stated that
further discussion on the issue of whether the
proposal to lift the term limits of elective
national and local officials is an amendment to,
and not a revision of, the Constitution is
rendered unnecessary, if not academic.
41. Case Summary
Lambino v. COMELEC
G.R. No. 174153 | 2006-10-25
Subject:
Section 2, Article XVII of the Constitution
(Amendment by initiative), Amendment vs
Revision of the Constitution.
Facts:
Groups of individuals including Atty. Raul
Lambino (Lambino Group) gathered signatures
for an initiative petition to change the 1987
Constitution. The proposed changes under the
initiative petition will shift the present
Bicameral-Presidential system to a Unicameral-
Parliamentary form of government.
The Lambino Group alleged that the 6.3 Million
signatures gathered constituted at least 12
percent of all registered voters, with each
legislative district represented by at least
3percent of its registered voters.
The Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will ratify
their initiative petition under Republic Act No.
6735 or the Initiative and Referendum Act. The
COMELEC denied the Lambino petition and
invoked the ruling in Santiago v.
Comelec declaring RA 6735 inadequate to
implement the initiative clause on proposals to
amend the Constitution.
Held:
Section 2, Article XVII (Amendment of the
Constitution through a People's Initiative)
1. The Lambino Group's initiative is void and
unconstitutional because it fails to comply with
the requirement of Section 2, Article XVII of the
Constitution that the initiative must be "directly
proposed by the people through initiative upon
a petition."
2. Section 2, Article XVII of the Constitution is
the governing constitutional provision that
allows a people's initiative to propose
amendments to the Constitution. It states:
143
Sec 2. Amendments to this Constitution may
likewise be directly proposed by the people
through initiative upon a petition of at least
twelve per centum of the total number of
registered voters of which every legislative
district must be represented by at least three
per centum of the registered voters therein.
Xxx
3. Two essential elements must be
present. First, the people must author and thus
sign the entire proposal. No agent or
representative can sign on their behalf. Second,
the proposal must be embodied in a petition.
4. In order to comply with these essential
elements, the petition must contain the full
text of the proposed amendments. The full text
of the proposed amendments may be either
written on the face of the petition, or attached
to it. If so attached, the petition must state the
fact of such attachment.
5. Section 2, Article XVII of the Constitution
does not expressly state that the petition must
set forth the full text of the proposed
amendments. However, the deliberations
clearly show that the framers of the
Constitution intended to adopt the relevant
American jurisprudence on people's initiative
where the requirement is that the people must
first see the full text of the proposed
amendments before they sign to signify their
assent. This is so that registered voters can
intelligently evaluate whether to sign the
initiative petition.
6. The Lambino Group merely submitted a
copy of the signature sheet. The signature
sheet does not show to the people the draft of
the proposed changes before they are asked to
sign the signature sheet. The signature sheets
do not also contain any indication that the draft
petition is attached to, or circulated with, the
signature sheets. The signature sheet is not the
'petition' envisioned in the initiative clause of
the Constitution.
Logrolling in the petition
7. American jurisprudence on initiatives
outlaws logrolling - when the initiative petition
incorporates an unrelated subject matter in the
same petition. This puts the people in a
dilemma since they can answer only either yes
or no to the entire proposition, forcing them to
sign a petition that effectively contains two
propositions, one of which they may find
unacceptable. Under American jurisprudence,
the effect of logrolling is to nullify the entire
proposition and not only the unrelated subject
matter.
8. The proposed Section 4(4) of the Transitory
Provisions, mandating the interim Parliament to
propose further amendments or revisions to the
Constitution, is a subject matter totally
unrelated to the shift in the form of
government.
Amendment vs Revision of the
Constitution
9. Revision broadly implies a change that
alters a basic principle in the constitution, like
altering the principle of separation of powers or
the system of checks-and-balances. There is
also revision if the change alters the substantial
entirety of the constitution, as when the change
affects substantial provisions of the
constitution. Revision generally affects several
provisions of the constitution. The intention of a
revision is to contemplate a re-examination of
the entire document, or of provisions of the
document which have over-all implications for
the entire document
10. Amendment broadly refers to a change
that adds, reduces, or deletes without altering
the basic principle involved. Amendment
generally affects only the specific provision
being amended. The intention of an
amendment is to improve specific parts or to
add new provisions deemed necessary to meet
new conditions or to suppress specific portions
that may have become obsolete or that are
judged to be dangerous. [Examples: reducing
the voting age from 18 years to 15 years;
reducing Filipino ownership of mass media
companies from 100 percent to 60 percent;
change requiring a college degree as an
additional qualification for election to the
Presidency]
11. US courts have developed a two-part
test in determining whether the proposed
changes constitute an amendment or revision:
144
(a) The quantitative test asks whether the
proposed change is 'so extensive in its 16. Since a revision of a constitution affects
provisions as to change directly the 'substantial basic principles, or several provisions of a
entirety' of the constitution by the deletion or constitution, a deliberative body with recorded
alteration of numerous existing provisions.' The proceedings is best suited to undertake a
court examines only the number of provisions revision.
affected and does not consider the degree of
the change.
Revisit of Santiago v Comelec not
(b) The qualitative test asks whether the necessary
change will 'accomplish such far reaching
changes in the nature of our basic 17. The Court must decline to revisit
governmental plan as to amount to a revision'. Santiago which effectively ruled that RA 6735
Whether there is an alteration in the structure does not comply with the requirements of the
of government is a proper subject of inquiry. Constitution to implement the initiative clause
on amendments to the Constitution. An
12. The Lambino Group's initiative is a revision affirmation or reversal of Santiago will not
and not merely an amendment. Quantitatively, change the outcome of the present petition.
the Lambino Group's proposed changes
overhaul two articles - Article VI on the 18. Even assuming that RA 6735 is valid to
Legislature and Article VII on the Executive - implement the constitutional provision on
affecting a total of 105 provisions in the entire initiatives to amend the Constitution, this will
Constitution. Qualitatively, the proposed not change the result here because the present
changes alter substantially the basic plan of petition violates Section 2, Article XVII of the
government, from presidential to Constitution. To be a valid initiative, the present
parliamentary, and from a bicameral to a initiative must first comply with Section 2,
unicameral legislature. Article XVII of the Constitution even before
complying with RA 6735.
People's Initiative applies only to
amendments 19. The present initiative violates Section 5(b)
of RA 6735 which requires that the "petition for
13. Article XVII of the Constitution speaks an initiative on the 1987 Constitution must
of three modes of amending the have at least twelve per centum (12%) of the
Constitution. total number of registered voters as
signatories." Section 5(b) of RA 6735 requires
a) By Congress upon three-fourths vote of all that the people must sign the "petition x x x as
its Members. signatories." The 6.3 million signatories did not
b) By Constitutional convention. sign the petition filed with the COMELEC. Only
c) through a People's initiative. Atty. Lambino, Atty. Demosthenes B. Donato,
and Atty. Alberto C. Agra signed the petition
14. A people's initiative to change the and amended petition as counsels for "Raul L.
Constitution applies only to an Lambino and Erico B. Aumentado, Petitioners.
amendment of the Constitution andnot to its
revision. In contrast, Congress or 42. Case Summary
a Constitutional convention can Gonzales v. COMELEC (1967)
propose both amendments and revisions to the G.R. No. L-28196 and G.R. No. L-28224 | 1967-
Constitution. (Sec 1 and 2, Article XVII of the 11-09
Constitution)
Subject:
15. In other words, only Congress or a
Constitutional convention may Constitutional Amendments, Reapportionment
propose revisions to the Constitution. A of congressional districts, De facto doctrine
people's initiative is only available to propose
amendments. Facts:
145

On March 16, 1967, the Senate and the House
of Representatives passed Joint Resolutions (a)
to increase the membership of the House of
Representatives from a maximum of 120, as
provided in the present Constitution, to a
maximum of 180 to be apportioned among the
several provinces; (b) to call a convention to
propose amendments to the present
Constitution; and (c) to amend Section 16,
Article VI of the said Constitution so they can
become delegates themselves to the
Convention.
Subsequently, Congress passed a bill which
became RA 4913, providing that the
amendments to the Constitution proposed in
the aforementioned Resolutions be submitted,
for approval by the people, at the general
elections which shall be held on November 14,
1967.
In this consolidated petition, petitioners Ramon
A. Gonzales and PHILCONSA seek to declare RA
4913 unconstitutional and to restrain COMELEC
from holding the plebiscite for the ratification of
the constitutional amendments proposed in
Joint Resolutions Nos. 1 and 3.
It is further contested that said resolutions are
null and void because: (1) The Members of
Congress, which approved the proposed
amendments and the resolutions are, at best,
de facto Congressmen; (2) Congress may adopt
either one of two alternatives-- propose
amendments or call a convention-- but may not
avail of both at the same time; (3) The election,
in which proposals for amendment to the
Constitution shall be submitted for ratification,
must be a special election, not a general
election.
Held:
Not a Political Question
1. The judicial department is the only
constitutional organ which can be called upon
to determine the proper allocation of powers
between the several departments and among
the integral or constituent units thereof.
2. The issue whether or not a Resolution of
Congress acting as a constituent assembly
violates the Constitution is essentially
justiciable, not political, and, hence, subject to
judicial review, and, (Note: to the extent that
this view may be inconsistent with the stand
taken in Mabanag vs. Lopez Vito, the latter
should be deemed modified accordingly)
Amendment of the Constitution
3. The power to amend the Constitution or
to propose amendments thereto is not
included in the general grant of legislative
powers to Congress.
4. The power to amend the Constitution lies in
the inherent powers of the peopleas the
repository of sovereignty in a republican state
to make, and hence, to amend their own
fundamental law.
5. Congress may propose amendments to
the Constitution merely because the same
explicitly grants such power. When exercising
the same, Senators and Members of the House
of Representatives act, not as members of
Congress, but as component elements of
a constituent assembly.
6. When acting as such, the members of
Congress derive their authority from the
Constitution, unlike the people, when
performing the same function, for their
authority does not emanate from the
Constitutionthey are the very source of all
powers of government, including the
Constitution itself.
Ratification of Constitutional
Amendments- can be joined in a General
Election
7. Also, the ratification of the amendments to
the Constitution need not necessarily be in
a special election or plebiscite called for
that purpose alone. While such procedure is
highly to be preferred, the Constitution speaks
simply of an election at which the
amendments are submitted to the people for
their ratification.
8. To join the ratification of the proposed
amendments with an election for candidates to
public office does not render it any less an
election at which the proposed amendments
146
are submitted to the people for their
ratification. No prohibition being found in the
plain terms of the Constitution, none should be
inferred.
Effect of failure of Congress to
reapportion congressional districts
9. The fact that Congress is under obligation to
make apportionment, as required under the
Constitution, does not justify the conclusion
that such failure rendered Congress illegal or
unconstitutional, or that its Members have
become de facto officers.
10. The Constitution does not support the view
that, upon the expiration of the period to make
the apportionment, a Congress which fails to
make it is dissolved or becomes illegal. On the
contrary, it implies necessarily that Congress
shall continue to function with the
representative districts existing at the time of
the expiration of said period.
De facto doctrine
11. The title of a de facto officer cannot be
assailed collaterally. It may not be contested
except directly, by quo warranto proceedings.
12. Neither may the validity of his acts be
questioned upon the ground that he is merely a
de facto officer. And the reasons are obvious:
(1) it would be an indirect inquiry into the title
to the office; and (2) the acts of a de facto
officer, if within the competence of his office,
are valid, insofar as the public is concerned.
13. The main reason for the existence of the de
facto doctrine is that public interest demands
that acts of persons holding, under color of
title, an office created by a valid statute be,
likewise, deemed valid insofar as the publicas
distinguished from the officer in questionis
concerned.
14. Indeed, otherwise those dealing with
officers and employees of the Government
would be entitled to demand from them
satisfactory proof of their title to the positions
they hold, before dealing with them, or before
recognizing their authority or obeying their
commands, even if they should act within the
limits of the authority vested in their respective
offices, position or employments.
Nullification of legislative acts
15. For a law to be struck down as
unconstitutional, it must be so by reason of
some irreconcilable conflict between it and the
Constitution.
16. The sufficiency or insufficiency, from a
constitutional angle, of the submission for
ratification to the people depends upon
whether the provisions of RA 4913 are such as
to fairly apprise the people of the gist, the main
idea or the substance of said proposals. We
believe that RA 4913 satisfies such requirement
and that said Act is, accordingly, constitutional
17. The provisions of Article XV of the
Constitution are satisfied so long as the
electorate knows that Resolution No. 3 permits
Congressmen to retain their seats as
legislators, even if they should run for and
assume the functions of delegates to the
Convention.
43. Case Summary
Tolentino vs COMELEC (1971)
G.R. No. L-34150 | 1971-10-16
Subject: The Supreme Court has jurisdiction to
determine the constitutionality of the acts of a
constitutional convention; There should only be
one election or plebiscite wherein all the
proposed amendments are submitted to the
people for ratification at the same time, not
separately from each and all of the other
amendments.
Facts:
Arturo M. Tolentino filed a petition for
prohibition before the Supreme Court to
restrain the Commission on Elections
(COMELEC) from implementing Organic
Resolution No. 1 of the Constitutional
Convention of 1971, as well as the
implementing acts and resolutions of the said
Convention and the COMELEC. The pertinent
portion reads:
Section 1. Section One of Article V of the
147
Constitution of the Philippines is amended to as
follows:
Section 1. Suffrage may be exercised by (male)
citizens of the Philippines not otherwise
disqualified by law, who are (twenty-one)
EIGHTEEN years or over and are able to read
and write, and who shall have resided in the
Philippines for one year and in the municipality
wherein they propose to vote for at least six
months preceding the election.
Section 2. This amendment shall be valid as
part of the Constitution of the Philippines when
approved by a majority of the votes cast in a
plebiscite to coincide with the local elections in
November 1971.
Xxx
As identified by the Supreme Court, the issue
before it for resolution was whether or not there
was any limitation or condition in Section 1 of
Article XV of the Constitution which was
violated by the act of the Convention of calling
for a plebiscite on the sole amendment
contained in Organic Resolution No. 1.
Held:
The Supreme Court has jurisdiction to
determine the constitutionality of the acts
of a constitutional convention.
1. The Supreme Court, citing Gonzales v.
Comelec (21 SCRA 774), held that the issue
whether or not a Resolution of Congress acting
as a constituent assembly, and, for that matter,
of a constitutional convention called for the
purpose of proposing amendments to the
Constitution violates the Constitution is
essentially justiciable not political, and, hence,
subject to judicial review.
2. A constitutional convention owes its
existence and derives all its authority and
power from the existing Constitution. Thus, the
Supreme Court which has the sacred duty to
give meaning and vigor to the Constitution by
interpreting and construing its provisions and
by striking down any act violative thereof, has
jurisdiction to determine the constitutionality of
the acts of a constitutional convention.
There should only be one election or
plebiscite wherein all the proposed
amendments are submitted to the people
for ratification at the same time, not
separately from each and all of the other
amendments.
3. The Supreme Court held that there was a
limitation or condition in Section 1 of Article XV
of the Constitution which was violated by the
act of the Convention of calling for a plebiscite
on the sole amendment contained in Organic
Resolution No. 1, and it was the condition and
limitation that all the amendments to be
proposed by the same Convention must be
submitted to the people in a single election or
plebiscite.
4. In arriving at the foregoing conclusion, the
Supreme Court held that as Section 1 of Article
XV of the Constitution distinctly states that
Congress sitting as a constituent assembly or a
convention called for the purpose may
propose amendments to this Constitution,
there is no limit as to the number of
amendments that Congress or the Convention
may propose. However, the same Section 1
limits the number of election or plebiscite that
may be held to ratify any amendment or
amendments proposed by the same constituent
assembly of Congress or convention, to only
one, as the said constitutional provision
definitely provides that such amendments
shall be valid as part of this Constitution when
approved by a majority of the votes cast at
an election at which the amendments are
submitted to the people for their ratification.
5. Moreover, all the proposed amendments
must be submitted to the people for ratification
at the same time, not separately from each and
all of the other amendments, because the
Constitution has to be an integrated and
harmonious instrument, if it is to be viable as
the framework of the government it
establishes, on the one hand, and adequately
formidable and reliable as the succinct but
comprehensive articulation of the rights,
liberties, ideology, social ideals, and national
and nationalistic policies and aspirations of the
people, on the other. This harmony can be
achieved only if the people can study with
deliberation the proposed amendment in
relation to the whole existing constitution and
or any of its parts and thereby arrive at an
148
intelligent judgment as to its acceptability an
intelligent judgment as to its acceptability.
6. As the amendment proposed to be submitted
to a plebiscite was only the first amendment
the Convention proposed, the plebiscite being
called for the purpose of submitting the same
for ratification of the people was not authorized
by Section 1 of Article XV of the Constitution,
hence all acts of the Convention and the
respondent COMELEC in that direction were null
and void.
44. Case Summary
Francisco vs. House of Representatives
(2003)
G.R. No. 160261 | 2003-11-10
Subject:
Statutory Construction (of the Constitution);
Reliance on Foreign Jurisprudence to Interpret
the Constitution; Judicial Review and Separation
of Powers; Requisites for Exercise of Judicial
Review; Locus Standi; Class Suits;
Impeachment, meaning of 'to Initiate';
Impeachment case vs Impeachment Proceeding
Facts:
On June 2, 2003, an impeachment complaint
(1st impeachment complaint) was filed by
former President Estrada against Chief Justice
Hilario Davide, Jr. and 7 Associate Justices for
culpable violation of the Constitution, betrayal
of public trust and other high crimes.
On October 22, 2003, the House Committee on
Justice voted to dismiss the complaint for
being insufficient in substance, although it
was sufficient in form.
On October 23, 2003, a day after the House
Committee on Justice voted to dismiss the
complaint or 4 months and 3 weeks since the
filing thereof, a 2nd impeachment
complaint was filed with the Houses Secretary
General by Representatives Teodoro, Jr. and
Funtabella against Chief Justice Hilario Davide,
founded on the alleged results of the legislative
inquiry "to conduct an investigation, in aid of
legislation, on the manner of disbursements
and expenditures by the Chief Justice of the
Supreme Court of the Judiciary Development
Fund (JDF).
The 2nd impeachment complaint was
accompanied by a Resolution of Endorsement/
Impeachment signed by at least 1/3 of all the
Members of the House of Representatives.
Due to the events that took place, several
instant petitions were filed against the House of
Representatives, mostly contending that
the filing of the 2nd impeachment complaint is
unconstitutional as it violates Article XI
Section 5 of the Constitution that no
impeachment proceedings shall be
INITIATED against the same official more
than once within a period of one year ;
and that sections 16 and 17 of Rule V of the
Rules of Procedure in Impeachment Proceedings
of the 12th Congress are unconstitutional as
well.
The House of Representatives argues that
sections 16 and 17 of Rule V of the House
Impeachment Rules do not violate Section 3 (5)
of Article XI of the present Constitution,
contending that the term "initiate" does not
mean "to file", and concludes that the one
year bar prohibiting the initiation of
impeachment proceedings against the same
officials could not have been violated as the
impeachment complaint against Chief Justice
Davide and the 7 Associate Justices had not
been initiated as the House of Representatives,
acting as the collective body, has yet to act on
it.
The resolution of this issue thus hinges on the
interpretation of the term "initiate".
Section 3 (2), Article XI of the 1987
Constitution
3 ways to file an impeachment complaint:
1) by a verified complaint for impeachment by
any member of the House of Representatives;
or
2) by any citizen upon a resolution of
endorsement by any member (of the House of
Representatives); or
149
3) by at least 1/3 of all the members of the Constitution is to be separated from all the
House of Representatives others, to be considered alone, but that all the
provisions bearing upon a particular subject are
Sections 16 and 17 of Rule V of the House to be brought into view and to be so interpreted
Impeachment Rules (of the 12th as to effectuate the great purposes of the
Congress) instrument. Sections bearing on a particular
subject should be considered and interpreted
Impeachment proceedings are deemed together as to effectuate the whole purpose of
initiated: the Constitution and one section is not to be
allowed to defeat another, if by any reasonable
1) if there is a finding by the House Committee construction, the two can be made to stand
on Justice that the verified complaint and/or together. In other words, the court must
resolution is sufficient in substance; or harmonize them, if practicable, and must lean
in favor of a construction which will render
2) once the House itself affirms or overturns every word operative, rather than one which
the finding of the Committee on Justice that the may make the words idle and nugatory.
verified complaint and/or resolution is not
sufficient in substance; or Reliance on Foreign Jurisprudence to
Interpret the Constitution
3) by the filing or endorsement before the
Secretary-General of the House of
Representatives of a verified complaint or a
resolution of impeachment by at least 1/3 of 4. In this case, the House argues that the
the members of the House impeachment proceedings are outside the
scope of judicial review in relation to Art XI
Held: Section 3(6) of the constitution which says that
the Senate has the sole power to try and decide
Statutory Construction (of the impeachment cases. The House also relies on
Constitution) American jurisprudence to support their claim.

1. First, verba legis, that is, wherever possible,
the words used in the Constitution must be
given their ordinary meaning except where
technical terms are employed. We look to the
language of the document itself in our search
for its meaning. We do not of course stop there,
but that is where we begin.
2. Second, where there is
ambiguity, ratio legis est anima. The words
of the Constitution should be interpreted in
accordance with the intent of its framers. The
object is to ascertain the reason which induced
the framers of the Constitution to enact the
particular provision and the purpose sought to
be accomplished thereby, in order to construe
the whole as to make the words consonant to
that reason and calculated to effect that
purpose.
3. Finally, ut magis valeat quam pereat. The
Constitution is to be interpreted as a whole. It is
a well-established rule in constitutional
construction that no one provision of the
5. As held in the case of Garcia vs. COMELEC,
"[i]n resolving constitutional disputes, [this
Court] should not be beguiled by foreign
jurisprudence some of which are hardly
applicable because they have been dictated by
different constitutional settings and needs."
Indeed, although the Philippine Constitution can
trace its origins to that of the United States,
their paths of development have long since
diverged.
6. There are also glaring distinctions between
the U.S. Constitution and the Philippine
Constitution with respect to the power of the
House of Representatives over impeachment
proceedings.
-the U.S. Constitution bestows sole power of
impeachment to the House of
Representatives without limitation
-the Philippine Constitution, though vesting in
the House of Representatives the exclusive
power to initiate impeachment cases, provides
150
for several limitations to the exercise of such
power as embodied in Section 3(2), (3), (4) and
(5), Article XI thereof. These limitations include
the manner of filing, required vote to impeach,
and the one year bar on the impeachment of
one and the same official.
Judicial Review and Separation of Powers
7. The Courts power of judicial review is
conferred on the judicial branch of the
government in Article VIII section 1 of the 1987
Constitution.
8. Judicial review is an integral component of
the delicate system of checks and
balances which, together with the
corollary principle of separation of powers,
forms the bedrock of our republican form of
government and insures that its vast powers
are utilized only for the benefit of the people for
which it serves.
9. When the judiciary mediates to allocate
constitutional boundaries, it does not assert
any superiority over the other departments;
rather, it only asserts the solemn and sacred
obligation assigned to it by the Constitution to
check the other departments in the exercise of
its power to determine the law, and hence to
declare executive and legislative acts void if
violative of the Constitution.
10. The power of judicial review includes the
power of review over justiciable issues in
impeachment proceedings.
Requisites for exercise of Judicial Review
11. The courts' power of judicial review is
subject to several limitations. In order for the
courts to exercise its judicial review power, the
following requisites must be established:
(1) an actual case or controversy calling for the
exercise of judicial power;
(2) the person challenging the act must have
"standing" to challenge; he must have a
personal and substantial interest in the case
such that he has sustained, or will sustain,
direct injury as a result of its enforcement;
(3) the question of constitutionality must be
raised at the earliest possible opportunity; and
(4) the issue of constitutionality must be the
very lis mota of the case.
Locus Standi
12. Locus standi or legal standing has been
defined as a personal and substantial interest in
the case such that the party has sustained or
will sustain direct injury as a result of the
governmental act that is being challenged.
Citizen standing
13. When suing as a citizen, the interest of the
petitioner assailing the constitutionality of a
statute must bedirect and personal. He must be
able to show, not only that the law or any
government act is invalid, but also that he
sustained or is in imminent danger of
sustaining some direct injury as a result of its
enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear
that the person complaining has been or is
about to be denied some right or privilege to
which he is lawfully entitled or that he is about
to be subjected to some burdens or penalties
by reason of the statute or act complained of.
14. When the proceeding involves the assertion
of a public right, the mere fact that he is a
citizen satisfies the requirement of personal
interest.
Taxpayer standing
15. In the case of a taxpayer, he is allowed to
sue where there is a claim that public funds are
illegally disbursed, or that public money is
being deflected to any improper purpose, or
that there is a wastage of public funds through
the enforcement of an invalid or
unconstitutional law. Before he can invoke the
power of judicial review, however, he must
specifically prove that he has sufficient interest
in preventing the illegal expenditure of money
raised by taxation and that he would sustain a
direct injury as a result of the enforcement of
the questioned statute or contract. It is not
sufficient that he has merely a general interest
common to all members of the public. At all
events, courts are vested with discretion as to
whether or not a taxpayer's suit should be
entertained.
151
16. In this case, the Court opts to grant
standing to most of the petitioners, given their
allegation that any impending transmittal to the
Senate of the Articles of Impeachment and the
ensuing trial of the Chief Justice will necessarily
involve the expenditure of public funds.
Legislator standing
17. As for a legislator, he is allowed to sue to
question the validity of any official action which
he claims infringes his prerogatives as a
legislator. Indeed, a member of the House of
Representatives has standing to maintain
inviolate the prerogatives, powers and
privileges vested by the Constitution in his
office.
Associations standing
18. While an association has legal personality
to represent its members, especially when it is
composed of substantial taxpayers and the
outcome will affect their vital interests, the
mere invocation by the Integrated Bar of the
Philippines or any member of the legal
profession of the duty to preserve the rule of
law and nothing more, although undoubtedly
true, does not suffice to clothe it with standing.
Its interest is too general. It is shared by other
groups and the whole citizenry.
19. However, a reading of the petitions shows
that it has advanced constitutional issues which
deserve the attention of this Court in view of
their seriousness, novelty and weight as
precedents. It, therefore, behooves this Court to
relax the rules on standing and to resolve the
issues presented by it.
Class suits
20. When dealing with class suits filed in
behalf of all citizens, persons intervening must
be sufficiently numerous to fully protect the
interests of all concerned to enable the court to
deal properly with all interests involved in the
suit, for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under
the res judicataprinciple, binding on all
members of the class whether or not they were
before the court.
21. Where it clearly appears that not all
interests can be sufficiently represented as
shown by the divergent issues raised in the
numerous petitions before this Court, G.R. No.
160365 as a class suit ought to fail.
22. However, since petitioners additionally
allege standing as citizens and taxpayers, their
petition will stand.
Impeachment, meaning of to Initiate
(Impeachment case vs Impeachment
Proceeding)
23. The word "initiate" as it twice appears in
Article XI (3) and (5) of the Constitution means
to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary
men to mean, as dictionaries do: to begin, to
commence, or set going.
24. According to Father Bernas, an amicus
curiae, an impeachment proceeding is not a
single act. It is a complexus of acts consisting
of a beginning, a middle and an end.
(a) The beginning or the initiation is the filing of
the complaint and its referral to the Committee
on Justice.
(b) The middle consists of those deliberative
moments leading to the formulation of the
articles of impeachment.
(c) The end is the transmittal of the articles of
impeachment to the Senate.
25. An impeachment case is the legal
controversy that must be decided by
the Senate. The Constitution provides that the
House, by a vote of one-third of all its
members, can bring a case to the Senate. It is
in that sense that the House has "exclusive
power" to initiate all cases of impeachment. No
other body can do it. However, before a
decision is made to initiate a case in the
Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be
"initiated."
26. An impeachment proceeding takes place
not in the Senate but in the House and consists
of several steps:
152
(1) the filing of a verified complaint either by a
Member of the House of Representatives or by
a private citizen endorsed by a Member of the
House of the Representatives;
(2) the processing of this complaint by the
proper Committee which may either reject the
complaint or uphold it;
(3) whether the resolution of the Committee
rejects or upholds the complaint, the resolution
must be forwarded to the House for further
processing; and
(4) the processing of the same complaint by the
House of Representatives which either affirms a
favorable resolution of the Committee or
overrides a contrary resolution by a vote of
one-third of all the members.
(5) If at least one third of all the Members
upholds the complaint, Articles of Impeachment
are prepared and transmitted to the Senate. It
is at this point that the House "initiates an
impeachment case." It is at this point that an
impeachable public official is successfully
impeached. That is, he or she is successfully
charged with an impeachment "case" before
the Senate as impeachment court.
27. Father Bernas further explains: The
"impeachment proceeding" is not initiated
when the complaint is transmitted to the
Senate for trial because that is the end of the
House proceeding and the beginning of another
proceeding, namely the trial. Neither is the
"impeachment proceeding" initiated when the
House deliberates on the resolution passed on
to it by the Committee, because something
prior to that has already been done. The action
of the House is already a further step in the
proceeding, not its initiation or beginning.
Rather, the impeachment proceeding
is initiated or begins, when a verified
complaint is filed and referred to the
Committee on Justice for action. This is the
initiating step which triggers the series of steps
that follow. He concludes that when Section 3
(5) says, "No impeachment proceeding shall be
initiated against the same official more than
once within a period of one year," it means that
no second verified complaint may be accepted
and referred to the Committee on Justice for
action.
28. Therefore, considering that the first
impeachment complaint, was filed by former
President Estrada against Chief Justice Hilario
Davide, Jr., along with 7 Associate Justices of
the Supreme Court, on June 2, 2003 and
referred to the House Committee on Justice on
August 5, 2003, the second impeachment
complaint filed by Representatives Teodoro, Jr.
and Fuentebella against the Chief Justice on
October 23, 2003 violates the constitutional
prohibition against the initiation of
impeachment proceedings against the
same impeachable officer within a one-
year period.
45. Case Summary
Morales vs. Court of Appeals and Binay
(2015)
G.R. Nos. 217126-27 | 2015-11-10
Subject: Resort to the extraordinary remedy of
Certiorari and Prohibition is proper, without
need of prior motion for reconsideration before
the Court of Appeals; Section 14, RA 6770;
Second paragraph of Section 14, RA 6770 is
unconstitutional; Court may decide on
constitutional questions affecting jurisdiction
even though not raised in the pleadings;
Consequence of invalidity ( CA has subject
matter jurisdiction); Ombudsman's
independence protects it from political pressure
, but not from judicial power; First paragraph of
Section 14, RA 6770 is declared ineffective
insoafar as it encroaches upon the
court's inherent power to issue injunctions;
Preventive suspension order; The condonation
doctrine, which is the basis of the CA's
injunctive writs, is abandoned; Abandonment of
the condonation doctrine should
be prospective in application; Objection to
propriety of contempt charge is premature
Facts:
On July 2014, a complaint/affidavit was filed
before the Office of the Ombudsman against
Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) and
other public officers and employees of the City
Government of Makati (Binay, Jr., et al),
accusing them of Plunder and violation of
Republic Act No. 3019,otherwise known as "The
Anti-Graft and Corrupt Practices Act," in
153
connection with the five (5) phases of the
procurement and construction of the Makati
City Hall Parking Building (Makati Parking
Building).
A Special Panel of Investigators was constituted
to conduct a fact-finding investigation. The
panel filed a complaint (OMB Complaint)
against Binay, Jr., et al, charging them with six
(6) administrative cases for Grave Misconduct,
Serious Dishonesty, and Conduct Prejudicial to
the Best Interest of the Service, and six (6)
criminal cases for violation of Section 3 (e) of
RA 3019, Malversation of Public Funds, and
Falsification of Public Documents (OMB Cases).
As to Binay, Jr., the OMB Complaint alleged that
he was involved in anomalous activities
attending the procurement and construction
phases of the Makati Parking Building project,
committed during his first (2010-2013) and
second/ present term (2013-2016) as City
Mayor of Makati. In particular, Binay, Jr. issued
the Notice of Awards for Phase III, IV and V of
the Makati Parking Building project to Hilmarc's
Construction Corporation and executed the
corresponding contracts without the required
publication and the lack of architectural design,
and approved the release of funds therefor.
Before Binay, Jr., et al.'s filing of their counter-
affidavits, the Ombudsman issued the
challenged order placing Binay, Jr., et al. under
preventive suspension for not more than six (6)
months without pay, during the pendency of
the OMB Cases. Consequently, the Ombudsman
directed DILG Secretary Manuel A. Roxas II to
immediately implement the preventive
suspension order against Binay, Jr., et al., upon
receipt of the same.
The Ombudsman ruled that the requisites for
the preventive suspension of a public officer are
present, finding that: (a) the evidence of Binay,
Jr., et al.'s guilt was strong, (b) Binay, Jr., et
al.were administratively charged and said
charges, if proven to be true, warrant removal
from public service under the Revised Rules on
Administrative Cases in the Civil Service
(RRACCS), and (c) Binay, Jr., et al.'s respective
positions give them access to public records
and allow them to influence possible witnesses;
hence, their continued stay in office may
prejudice the investigation relative to the OMB
Cases filed against them.
On March 11, 2015, Binay, Jr. filed a petition
for certiorari before the Court of Appeals
seeking the nullification of the preventive
suspension order and praying for the issuance
of a temporary restraining order (TRO). Binay,
Jr. argued that any anomalous activity relating
to Phases III to V transpired during his first term
and that his re-election as City Mayor of Makati
for a second term effectively condoned his
administrative liability therefor.
On March 16, 2015, at around 8:24 a.m., DILG
Regional Director Renato Brion caused the
implementation of the preventive suspension
order by posting a copy of the order on the wall
of the Makati City Hall after failing to personally
serve the same on Binay, Jr. as the points of
entry to the Makati City Hall were closed.
At noon of the same day, the CA issued a
Resolution (dated March 16, 2015) granting
Binay, Jr.'s prayer for a TRO notwithstanding
Vice Mayor Pena, Jr.'s assumption of duties as
Acting Mayor earlier that day. Citing the case
ofGovernor Garcia, Jr. v. CA, the CA applied the
condonation doctrine espoused by Binay, Jr.
Binay, Jr. likewise filed a petition for contempt
with the Court of Appeals accusing Secretary
Roxas, Director Brion, et al of deliberately
refusing to obey the CA. The CA directed the
Ombudsman to file her comment thereto.
The Ombudsman, without filing a prior motion
for reconsideration before the Court of Appeals,
filed the present petition for Certiorari and
Prohibition before the Supreme Court claiming
that: (a) the CA had no jurisdiction to grant
Binay, Jr.'s prayer for a TRO, citing Section 14 of
RA 6770 or "The Ombudsman Act of 1989,"
which states that no injunctive writ could be
issued to delay the Ombudsman's investigation
unless there is prima facie evidence that the
subject matter thereof is outside the latter's
jurisdiction and (b) the Ombudsman is an
impeachable officer, and therefore, cannot be
subjected to contempt proceedings
In the meantime, the CA issued a
Resolution dated April 6, 2015 granting Binay,
Jr.'s prayer for a writ of preliminary injunction.
154
The CA found that Binay, Jr. is entitled to the
nullification of the preventive suspension order,
in view of the condonation doctrine,
citing Aguinaldo v. Santos.
Held:
Resort to the extraordinary remedy of
Certiorari and Prohibition is proper,
without need of prior motion for
reconsideration before the Court of
Appeals
1. A common requirement to both a petition
for certiorari and a petition for prohibition taken
under Rule 65 of the 1997 Rules of Civil
Procedure is that the petitioner has no other
plain, speedy, and adequate remedy in the
ordinary course of law.
2. As a general rule, a motion for
reconsideration must first be filed with the
lower court prior to resorting to the
extraordinary remedy of certiorari or prohibition
since a motion for reconsideration may still be
considered as a plain, speedy, and adequate
remedy in the ordinary course of law. The
rationale for the pre-requisite is to grant an
opportunity for the lower court or agency to
correct any actual or perceived error attributed
to it by the re-examination of the legal and
factual circumstances of the case.
3. Nonetheless, certain exceptions were crafted
to the general rule requiring a prior motion for
reconsideration before the filing of a petition
for certiorari, which exceptions also apply to a
petition for prohibition. One of the recognized
exceptions is where the issue raised is one
purely of law or where public interest is
involved.
4. In the present case, the question on the
authority of the CA to enjoin the
implementation of a preventive suspension
order issued by the Office of the Ombudsman is
put to the fore. This case tests the
constitutional and statutory limits of the
fundamental powers of key government
institutions and hence, involves an issue of
transcendental public importance. Also raised is
the equally important issue on the propriety of
the continuous application of the condonation
doctrine as invoked by a public officer who
desires exculpation from administrative liability.
As such, the Ombudsman's direct resort
to certiorari and prohibition before this Court,
notwithstanding her failure to move for the
prior reconsideration of the assailed
issuances before the CA, is justified.
Section 14, RA 6770
5. The Ombudsman's argument against the
CA's lack of subject matter jurisdiction over the
main petition, and her corollary prayer for its
dismissal, is based on her interpretation
of Section 14, RA 6770, or the Ombudsman
Act, which reads in full
Section 14. Restrictions. - No writ of
injunction shall be issued by any court to delay
an investigation being conducted by the
Ombudsman under this Act, unless there is
a prima facie evidence that the subject matter
of the investigation is outside the jurisdiction of
the Office of the Ombudsman.
No court shall hear any appeal or application
for remedy against the decision or findings of
the Ombudsman, except the Supreme Court, on
pure question of law.
6. The first paragraph of Section 14, RA 6770 is
a prohibition against any court (except the
Supreme Court from issuing a writ of
injunction to delay an investigation being
conducted by the Office of the Ombudsman.
Generally speaking, "injunction is a judicial writ,
process or proceeding whereby a party is
ordered to do or refrain from doing a certain
act. It may be the main action or merely a
provisional remedy for and as an incident in the
main action." Considering the textual qualifier
"to delay," which connotes a suspension of an
action while the main case remains
pending, the "writ of injunction" mentioned in
this paragraph could only refer to injunctions of
the provisional kind, consistent with the nature
of a provisional injunctive relief.
7. The exception to the no injunction policy is
when there is prima facie evidence that the
subject matter of the investigation is outside
the office's jurisdiction. The Office of the
Ombudsman has disciplinary authority over all
elective and appointive officials of the
government and its subdivisions,
155
instrumentalities, and agencies, with the
exception only of impeachable officers,
Members of Congress, and the Judiciary.
Nonetheless, the Ombudsman retains the
power to investigate any serious misconduct in
office allegedly committed by officials
removable by impeachment, for the purpose of
filing a verified complaint for impeachment, if
warranted. Note that the Ombudsman has
concurrent jurisdiction over certain
administrative cases which are within the
jurisdiction of the regular courts or
administrative agencies, but has primary
jurisdiction to investigate any act or omission of
a public officer or employee who is under the
jurisdiction of the Sandiganbayan.
8. The second paragraph of Section 14, RA
6770 provides that no appeal or application for
remedy may be heard against the decision or
findings of the Ombudsman, with the exception
of the Supreme Court on pure questions of law.
Second paragraph of Section 14, RA 6770 is
unconstitutional
9. The second paragraph of Section 14, RA
6770, which the Ombudsman particularly relies
on in arguing that the CA had no jurisdiction
over the main CA petition, as it is supposedly
the Supreme Court which has the sole
jurisdiction to conduct a judicial review of its
decisions or findings, is vague for two (2)
reasons: (a) it is unclear what the phrase
"application for remedy" or the word "findings"
refers to; and (b) it does not specify what
procedural remedy is solely allowable to the
Supreme Court, save that the same be taken
only against a pure question of law.
10. As an aid to construction, courts may avail
themselves of the actual proceedings of the
legislative body in interpreting a statute of
doubtful meaning. In case of doubt as to what a
provision of a statute means, the meaning put
to the provision during the legislative
deliberations may be adopted, albeit not
controlling in the interpretation of the law.
11. The Ombudsman submits that the
legislative intent behind Section 14, RA 6770,
particularly on the matter of judicial review of
her office's decisions or findings can be gleaned
from the Senate deliberations. The Court is,
however, unconvinced that the provision
debated on was Section 14, RA 6770, as the
Ombudsman invokes, but rather Section 27, RA
6770, as the latter textually reflects the
approval of Senator Angara's suggested
amendment, i.e., that the Ombudsman's
decision or finding may be assailed in a petition
for certiorari to the Supreme Court.
12. As a general rule, the second paragraph of
Section 14, RA 6770 bans the whole range of
remedies against issuances of the Ombudsman,
by prohibiting: (a) an appeal or (b) "any
application of remedy" against the decision or
findings of the Ombudsman. It crafts
an exception, which may be deduced as a Rule
45 appeal, for the reason that it is the only
remedy taken to the Supreme Court on "pure
questions of law". In sum, the appropriate
construction of the second paragraph of Section
14, RA 6770 is that all remedies against
issuances of the Office of the Ombudsman are
prohibited, except the Rule 45 remedy to the
Supreme Court on pure questions of law.
13. The second paragraph of Section 14, RA
6770's extremely limited restriction on
remedies is inappropriate since a Rule 45
appeal can only be taken against final decisions
or orders of lower courts, and not against
"findings" of quasi-judicial agencies.
14. Congress cannot alter the scope of a Rule
45 appeal so as to apply to interlocutory
"findings" issued by the Ombudsman. More
significantly, by confining the remedy to a Rule
45 appeal, the provision takes away the remedy
of certiorari, grounded on errors of jurisdiction,
in denigration of the judicial power
constitutionally vested in courts.
15. In this light, the second paragraph of
Section 14, RA 6770 also increased the
Supreme Court's appellate jurisdiction, without
a showing, however, that (the SC) gave its
consent to the same. Applying the ruling
in Fabian vs Desierto, second paragraph of
Section 14, RA 6770 is unconstitutional and
perforce, invalid.
Court may decide on constitutional
questions affecting jurisdiction even
though not raised in the pleadings
156

16. While courts will not ordinarily pass upon
constitutional questions which are not raised in
the pleadings, the rule has been recognized to
admit of certain exceptions. It does not
preclude a court from inquiring into its own
jurisdiction or compel it to enter a judgment
that it lacks jurisdiction to enter. If a statute on
which a court's jurisdiction in a proceeding
depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may
determine whether or not it has jurisdiction, it
necessarily follows that it may inquire into the
constitutionality of the statute.
Consequence of invalidity ( CA has subject
matter jurisdiction)
17. With the unconstitutionality of the second
paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence,
concludes that the CA has subject matter
jurisdiction over the main CA petition (Binay
petition seeking the nullification of the
preventive suspension order).
Ombudsman's independence protects it
from political pressure, but not from
judicial power
18. Section 5, Article XI of the 1987
Constitution guarantees the independence of
the Office of the Ombudsman. Under Section
12, Article XI of the 1987 Constitution, the
Office of the Ombudsman is envisioned to be
the "protector of the people" against the inept,
abusive, and corrupt in the Government, to
function essentially as a complaints and action
bureau. Congress enacted RA No. 6770 to
enable it to further realize the vision of the
Constitution. (see Gonzales III v. Office of the
President)
19. The concept of Ombudsman's
independence covers three (3) things:
First: creation by the Constitution, which means
that the office cannot be abolished, nor its
constitutionally specified functions and
privileges, be removed, altered, or modified by
law, unless the Constitution itself allows, or an
amendment thereto is made;
Second: fiscal autonomy, which means that the
office "may not be obstructed from [its]
freedom to use or dispose of [its] funds for
purposes germane to [its] functions, hence, its
budget cannot be strategically decreased by
officials of the political branches of government
so as to impair said functions; and
Third: insulation from executive supervision
and control, which means that those within the
ranks of the office can only be disciplined by an
internal authority. (see Gonzales III v. Office of
the President)
20. All three aspects of independence intend to
protect the Office of the Ombudsman
from political harassment and pressure. That
being the case, the concept of Ombudsman
independence cannot be invoked as basis to
insulate the Ombudsman from judicial power
constitutionally vested unto the courts. Courts
are apolitical bodies, which are ordained to act
as impartial tribunals and apply even justice to
all. Hence, the Ombudsman's notion that it can
be exempt from an incident of judicial power -
that is, a provisional writ of injunction against a
preventive suspension order - clearly strays
from the concept's rationale of insulating the
office from political harassment or pressure.
First paragraph of Section 14, RA 6770 is
declared ineffective insoafar as it
encroaches upon the court's inherent
power to issue injunctions
21. The first paragraph of Section 14, RA 6770
prohibits all courts, except the Supreme Court,
from issuing provisional writs of injunction to
enjoin an Ombudsman investigation.
22. A temporary restraining order and a writ of
preliminary injunction both constitute
temporary measures availed of during the
pendency of the action. They are, by nature,
ancillary because they are mere incidents in
and are dependent upon the result of the main
action. It is well-settled that the sole object of a
temporary restraining order or a writ of
preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo until
the merits of the case can be heard. They are
preservative remedies for the protection of
substantive rights or interests, and, hence, not
a cause of action in itself, but merely adjunct to
a main suit.
157

23. The power of a court to issue these
provisional injunctive reliefs coincides with
its inherent power to issue all auxiliary writs,
processes, and other means necessary to carry
its acquired jurisdiction into effect. (see Section
6, Rule 135 of the Rules of Court)
24. A court, once having obtained jurisdiction of
a cause of action, has, as an incidental to its
constitutional grant of power, inherent power to
do all things reasonably necessary to the
administration of justice in the case before it. In
the exercise of this power, a court, when
necessary in order to protect or preserve the
subject matter of the litigation, to protect its
jurisdiction and to make its judgment
effective, may grant or issue a temporary
injunction in aid of or ancillary to the principal
action.
25. The control over this inherent judicial power
(i.e. issuance of provisional injunction) is
exclusively within the constitutional realm of
the courts. As such, it is not within the purview
of the legislature to grant or deny the
power nor is it within the purview of the
legislature to shape or fashion circumstances
under which this inherently judicial power may
be or may not be granted or denied.
26. The Court rules that when Congress passed
the first paragraph of Section 14, RA 6770 and,
in so doing, took away from the courts their
power to issue a TRO and/or WPI to enjoin an
investigation conducted by the Ombudsman,
it encroached upon this Court's constitutional
rule-making authority. Clearly, these issuances,
which are, by nature, provisional reliefs and
auxiliary writs created under the provisions of
the Rules of Court, are matters of procedure
which belong exclusively within the province of
this Court.
27. The first paragraph of Section 14, RA 6770
is not a jurisdiction-vesting provision, as the
Ombudsman misconceives, because it does not
define, prescribe, and apportion the subject
matter jurisdiction of courts to act
on certiorari cases; the certiorari jurisdiction of
courts, particularly the CA, stands under the
relevant sections of BP 129 which were not
shown to have been repealed. Instead, through
this provision, Congress interfered with a
provisional remedy that was created by this
Court under its duly promulgated rules of
procedure, which utility is both integral and
inherent to every court's exercise of judicial
power. Without the Court's consent to the
proscription, as may be manifested by an
adoption of the same as part of the rules of
procedure through an administrative circular
issued therefor, there thus, stands to be a
violation of the separation of powers principle.
28. Thus, pending deliberation on whether or
not to adopt the same, the Court, under its sole
prerogative and authority over all matters of
procedure, deems it proper to declare as
ineffective the prohibition against courts other
than the Supreme Court from issuing
provisional injunctive writs to enjoin
investigations conducted by the Office of the
Ombudsman, until it is adopted as part of the
rules of procedure through an administrative
circular duly issued therefor.
29. Consequently, it remains that the CA had
the authority to issue the questioned injunctive
writs enjoining the implementation of the
preventive suspension order against Binay, Jr.
At the risk of belaboring the point, these
issuances were merely ancillary to the exercise
of the CA's certiorari jurisdiction conferred to it
under Section 9 (1), Chapter I of BP 129, as
amended, and which it had already acquired
over the main case (i.e., Binay petition to nullify
preventive suspension order).
Preventive suspension order
30. By nature, a preventive suspension order is
not a penalty but only a preventive measure. Its
purpose is to prevent the official to be
suspended from using his position and the
powers and prerogatives of his office to
influence potential witnesses or tamper with
records which may be vital in the prosecution of
the case against him. If after such investigation,
the charge is established and the person
investigated is found guilty of acts warranting
his suspension or removal, then he is
suspended, removed or dismissed. This is the
penalty. (see Quimbo v. Acting Ombudsman
Gervacio; Section 24 of Rule XIV of the
Omnibus Rules Implementing Book V of the
Administrative Code of 1987 (Executive Order
No. 292) and other Pertinent Civil Service Laws)
158
31. Not being a penalty, the period within which
one is under preventive suspension is not
considered part of the actual penalty of
suspension. (Section 25 of Rule XIV of the
Omnibus Rules)
32. Section 24, RA 6770 sets forth two (2)
conditions that must be satisfied to justify the
issuance of an order of preventive suspension
pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-
exist with the first requirement:
(a) The charge involves dishonesty, oppression
or grave misconduct or neglect in the
performance of duty;
(b) The charge would warrant removal from the
service; or
(c) The respondent's continued stay in office
may prejudice the case filed against him.
The condonation doctrine, which is the
basis of the CA's injunctive writs, is
abandoned
33. The CA held that Binay, Jr. has an ostensible
right to the final relief prayed for, i.e., the
nullification of the preventive suspension order,
finding that the Ombudsman can hardly impose
preventive suspension against Binay, Jr. given
that his re-election in 2013 as City Mayor of
Makati condoned any administrative liability
arising from anomalous activities relative to the
Makati Parking Building project from 2007 to
2013
34. The condonation doctrine - which connotes
this same sense of complete extinguishment of
liability as will be herein elaborated upon - is
not based on statutory law. It is a
jurisprudential creation that originated from
the1959 case of Pascual v. Hon. Provincial
Board ofNueva Ecija, which was decided under
the 1935 Constitution. As there was no legal
precedent on the issue at that time, the Court,
in Pascual, resorted to American authorities and
proceeded to declare that: The weight of
authorities x x x seems to incline toward the
rule denying the right to remove one from
office because of misconduct during a prior
term
35. The conclusion is at once problematic since
this Court has now uncovered that there is
really no established weight of authority in the
United States (US) favoring the doctrine of
condonation. In fact, at least seventeen (17)
states in the US have abandoned the
condonation doctrine.
36. While the condonation doctrine, as
espoused in Pascual, has been carried over in
numerous cases after, the doctrine of stare
decisis does not preclude this Court from
revisiting existing doctrine when there are
powerful countervailing considerations against
its application.
37. Pascual was a decision promulgated in
1959. Therefore, it was decided within the
context of the 1935 Constitution which was
silent with respect to public accountability, or of
the nature of public office being a public trust.
With the advent of the 1973 Constitution, it
introduced an entire article on accountability of
public officers, found in Article XIII.
Significantly, the 1987 Constitution
strengthened and solidified what has been first
proclaimed in the 1973 Constitution by
commanding public officers to be accountable
to the people at all times. (see Section 1,
Article XI of the 1987 Constitution)
38. For local elective officials like Binay, Jr., the
grounds to discipline, suspend or remove an
elective local official from office are stated in
Section 60 of Republic Act No. 7160, otherwise
known as the "Local Government Code of 1991"
(LGC). Section 66 (b) of the LGC states that
the penalty of suspension shall not exceed the
unexpired term of the elective local official nor
constitute a bar to his candidacy for as long as
he meets the qualifications required for the
office. Note, however, that the provision only
pertains to the duration of the penalty and its
effect on the official's candidacy. Nothing
therein states that the administrative liability
therefor is extinguished by the fact of re-
election. At best, Section 66 (b) of the LGC
prohibits the enforcement of the penalty of
suspension beyond the unexpired portion of the
elective local official's prior term, and likewise
allows said official to still run for re-election
159
39. The concept of public office is a public trust
and the corollary requirement of accountability
to the people at all times, as mandated under
the 1987 Constitution, is plainly inconsistent
with the idea that an elective local official's
administrative liability for a misconduct
committed during a prior term can be wiped off
by the fact that he was elected to a second
term of office, or even another elective post.
Election is not a mode of condoning an
administrative offense, and there is simply no
constitutional or statutory basis in our
jurisdiction to support the notion that an official
elected for a different term is fully absolved of
any administrative liability arising from an
offense done during a prior term. In this
jurisdiction, liability arising from administrative
offenses may be condoned bv the President in
light of Section 19, Article VII of the 1987
Constitution which was interpreted inLlamas v.
Orbos to apply to administrative offenses.
40. Equally infirm is Pascual's proposition that
the electorate, when re-electing a local official,
are assumed to have done so with knowledge
of his life and character, and that they
disregarded or forgave his faults or misconduct,
if he had been guilty of any. Suffice it to state
that no such presumption exists in any statute
or procedural rule.Besides, it is contrary to
human experience that the electorate would
have full knowledge of a public official's
misdeeds. Misconduct committed by an elective
official is easily covered up, and is almost
always unknown to the electorate when they
cast their votes. At a conceptual level,
condonation presupposes that the condoner
has actual knowledge of what is to be
condoned. Thus, there could be no condonation
of an act that is unknown.
41. This Court simply finds no legal authority to
sustain the condonation doctrine in this
jurisdiction. As can be seen from this discourse,
it was a doctrine adopted from one class of US
rulings way back in 1959 and thus, out of touch
from - and now rendered obsolete by - the
current legal regime. In consequence, it is high
time for this Court to abandon the condonation
doctrine that originated from Pascual.
Abandonment of the condonation doctrine
should be prospective in application
42. It should be clarified that this Court's
abandonment of the condonation doctrine
should be prospective in application for the
reason that judicial decisions applying or
interpreting the laws or the Constitution, until
reversed, shall form part of the legal system of
the Philippines.Hence, while the future may
ultimately uncover a doctrine's error, it should
be, as a general rule, recognized as "good law"
prior to its abandonment. Consequently, the
new doctrine should be applied prospectively,
and should not apply to parties who had relied
on the old doctrine and acted on the faith
thereof.(see People v. Jabinal)
43. Pursuant to Article 8 of the Civil Code
"judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the
legal system of the Philippines." But while the
[Supreme Court's] decisions form part of the
law of the land, they are also subject to Article
4 of the Civil Code which provides that "laws
shall have no retroactive effect unless the
contrary is provided.
44. The CA's resolutions directing the issuance
of the assailed injunctive writs were all hinged
on cases enunciating the condonation doctrine.
Hence, by merely following settled precedents
on the condonation doctrine, which at that
time, unwittingly remained "good law," it
cannot be concluded that the CA committed a
grave abuse of discretion based on its legal
attribution. Accordingly, the writ of preliminary
injunction against the Ombudsman's preventive
suspension order was correctly issued.
Objection to propriety of contempt charge
is premature
45. On the issue of whether the CA's Resolution
directing the Ombudsman to comment on
Binay, Jr.'s petition for contempt is improper,
the sole premise of the Ombudsman's
contention is that, as an impeachable officer,
she cannot be the subject of a charge for
indirect contempt because this action is
criminal in nature and the penalty therefor
would result in her effective removal from
office.
46. However, a reading of the aforesaid CA
Resolution does not show that she has already
160
been subjected to contempt proceeding. The
Ombudsman is merely being directed to
comment on the contempt petition. Thus,
absent any indication that the contempt
petition has been given due course by the CA, it
would then be premature for this Court to rule
on the issue.
46. Case Summary
Office of the Ombudsman vs CSC (2005)
G.R. No. 159940 | 2005-02-16
Subject: Inok ruling not a precedent; Career
Service; Positions in the Career Executive
Service refer to positions by appointment of the
President (Graft Investigation Officer III is
appointed by the Ombudsman, hence, CES
eligibility not required); Authority of CSC to
approve appointments in the civil service is
limited to determining whether or not the
appointees possess the legal qualifications and
the appropriate eligibility
Facts:
In 1994, in a letter addressed to then
Ombudsman Conrado Vasquez, the Civil Service
Commission (CSC) approved the Qualification
Standards for several positions in the Office of
the Ombudsman (petitioner) including that for
Graft Investigation Officer III.
In 1996, the Career Executive Service Board
(CESB) subsequently advised the Ombudsman
that pursuant to CSC Memorandum Circular No.
21, s.1994, the position of Graft Investigation
Officer III, among other positions in petitioner's
office, was classified as a Career Executive
Service (CES) position, hence, governed by the
rules of the CES pertaining to eligibility,
appointment to CES ranks, and performance
evaluation, among other things.
In 1999, the members of the Constitutional
Fiscal Autonomy Group (CFAG), namely: the
Commission on Elections (COMELEC), CSC,
Commission on Audit (COA), Commission on
Human Rights (CHR), Office of the Ombudsman
and the Supreme Court adopted Joint
Resolution No. 62, where it was resolved that
all career third level positions identified and
classified by each of the member agency are
not embraced within the Career Executive
Service (CES) and as such shall not require
Career Service Executive Eligibility (CSEE) or
Career Executive Service (CES) Eligibility for
purposes of permanent appointment
In 2002, Melchor Arthur H. Carandang, Paul
Elmer M. Clemente and Jose Tereso U. de Jesus,
Jr. were appointed Graft Investigation Officers III
of petitioner by the Ombudsman. The CSC
approved the appointments on the condition
that for the appointees to acquire security of
tenure, they must obtain CES or Civil Service
Executive (CSE) eligibility which is governed by
the CESB.
In a letter to the CSC, the Ombudsman
requested for the change of status, from
temporary to permanent, of the appointments
of Carandang, Clemente and De Jesus effective
December 18, 2002. The Ombudsman invoked
the Court of Appeals ruling in Khem N. Inok v.
Hon. Corazon Alma de Leon, as affirmed by the
Supreme Court, which declared that the Career
Executive Service (CES) is limited to CES
positions in the Executive Branch of
Government, and that the Judiciary, the
Constitutional Commissions, the Office of the
Ombudsman and the Commission on Human
Rights are not covered by the CES governed by
the Career Executive Service Board. Said
Decision thereby effectively granted the
petition of Mr. Inok for security of tenure as
Director II of the Commission on Audit despite
the absence of a CES eligibility.
Carandang and Clemente were in the meantime
conferred with CSE Eligibility. The CSC, by the
challenged Resolution of August 28, 2003,
changed the status of Carandangs and
Clementes appointments to permanent
effective June 6, 2003, but not with respect to
De Jesus on the ground that he has not met
the eligibility requirements.
Hence, the present petition where it is
contended by petitioner that
(a) the general power of respondent Civil
Service Commission (CSC) to administer the
civil service cannot constitutionally curtail the
specific discretionary power of appointment,
including the grant of security of tenure, by the
Ombudsman as an independent constitutional
body in favor of the latters own officials.
161

(b) the CES Eligibility, as administered by the
respondent CESB, cannot be validly made a
requisite for the attainment of security of
tenure on qualified career officials of petitioner
who are not legally part of the CES.
(c) officials which are appointed by the
Ombudsman are technically classified as
belonging to the Closed Career Service, the
positions being unique and highly technical as
they involve investigatorial, quasi-judicial and
prosecutorial functions, in much the same way
as judges are involved in judicial functions.
Hence, appointment to such positions is
likewise characterized by security of tenure.
Held:
Inok ruling not a precedent
1. Inok cannot be invoked as precedent in
arriving at the question raised in this petition.
This Court dismissed the petition of the CSC in
the Inok case on a technicality therein
petitioner CSCs failure to file a reply within the
required period and not on the merits.
Career service
2. Book V, Title I, Subtitle A of the
Administrative Code of 1987 provides:
SECTION 7. Career Service. The Career
Service shall be characterized by (1) entrance
based on merit and fitness to be determined as
far as practicable by competitive examination,
or based on highly technical qualifications; (2)
opportunity for advancement to higher career
positions; and (3) security of tenure.
The Career Service shall include:
(1) Open Career positions for appointment to
which prior qualification in an appropriate
examination is required;
(2) Closed Career positions which
are scientific, or highly technical in nature;
these include the faculty and academic staff of
state colleges and universities, and scientific
and technical positions in scientific or research
institutions which shall establish and maintain
their own merit systems;
(3) Positions in the Career Executive Service
(CES); namely, Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau
Director, Regional Director, Assistant Regional
Director, Chief of Department Service and other
officers of equivalent rank as may be identified
by the Career Executive Service Board, all of
whom are appointed by the President;
Positions in the Career Executive Service
refer to positions by appointment of the
President (Graft Investigation Officer III is
appointed by the Ombudsman, hence, CES
eligibility not required)
3. From the above-quoted provision of the
Administrative Code, persons occupying
positions in the Career Executive Service (CES)
are presidential appointees. A person occupying
the position of Graft Investigation Officer III is
not, however, appointed by the President but
by the Ombudsman as provided in Section 6,
Article IX of the Constitution.
4. To classify the position of Graft Investigation
Officer III as belonging to the CES and require
an appointee thereto to acquire CES or CSE
eligibility before acquiring security of tenure
would be absurd as it would result either in 1)
vesting the appointing power for said position
in the President, in violation of the Constitution;
or 2) including in the CES a position not
occupied by a presidential appointee, contrary
to the Administrative Code.
Authority of CSC to approve appointments
in the civil service is limited to
determining whether or not the
appointees possess the legal
qualifications and the appropriate
eligibility
5. Under P.D. No 807, Sec. 9(h) which
authorizes the CSC to approve appointments to
positions in the civil service, except those
specified therein, its authority is limited only to
[determine] whether or not the appointees
possess the legal qualifications and the
appropriate eligibility, nothing else.
162
6. It is not disputed that, except for his lack of passed the May, 1993 Board Examinations with
CES or CSE eligibility, De Jesus possesses the a rating of 75.42%
basic qualifications of a Graft Investigation
Officer III, as provided in the Qualification An anonymous letter was sent to PRC Chairman
Standards. Such being the case, the CSC has Pobre claiming that certain BIR employees
the ministerial duty to grant the request of the allegedly passed the CPA Licensure Exams
Ombudsman that appointment be made under anomalous circumstances"
permanent effective December 18, 2002. To
refuse to heed the request is a clear PRC Chairman Pobre wrote Ombudsman
encroachment on the discretion vested solely Vasquez that BIR employees Marilyn Lee,
on the Ombudsman as appointing authority. Connie Dimapilis, Eilene Purification, Elenita
The status of the appointments of Carandang Villamor, Lodiminda Crizaldo, Maria Rosario de
and Clemente, who were conferred CSE los Reyes, and petitioner Olivia Camanag did
eligibility pursuant to CSC Resolution No. 03- not actually pass the CPA licensure
0665 dated June 6, 2003, should be changed to examinations.
permanent effective December 18, 2002 too.
Associate Ombudsman Investigator (AOI)
7. Third level eligibility is not required for third Bumanlag conducted a fact-finding
level officials of petitioner appointed by the investigation, and thereafter filed a Report
Ombudsman in light of the provisions of the finding probable cause against petitioner for
Constitution vis-a-vis the Administrative Code of violation of Article 171(4) of the Revised Penal
1987 Code. AOI Bumanglag recommended a
preliminary investigation to be conducted on
Case Summary the case, and at the same time, he executed
47. Camanag vs. Guerrero (1997) under oath the corresponding affidavit-
G.R. No. 121017 | 1997-02-17 complaint against petitioner.

Subject: Grant of prosecutorial powers to the
Ombudsman under RA 6770 is valid; Office of
the Ombudsman is a distinct constitutional
body whose duties and functions are provided
for by the Constitution itself; Congress may
remove some of the powers of the Office of the
Special Prosecutor (formerly Tanodbayan) and
transfer the same to the Ombudsman;
Investigating prosecutor has discretion in the
determination of what constitute sufficient
evidence to establish "probable cause" for filing
an information; An injunction will not generally
lie to restrain a criminal action
Facts:
In 1993, the Professional Regulations
Commission (PRC) issued the Table of Results of
those who failed the May, 1993 Certified Public
Accountant (CPA) Licensure Examinations.
Petitioner Olivia B. Camanag was listed as
having failed with a general average of 50.00%
However, petitioner, in accomplishing her
Personal Data sheet (CSC form No. 212) as
employee of the Bureau of Internal Revenue
(BIR), indicated under question No. 18 that she
Ombudsman Investigator (OI) Almazan directed
petitioner to submit her counter-affidavit.
Thereafter, OI Almazan issued a Resolution,
finding probable cause against petitioner for
the crimes of falsification of public documents.
Deputy Ombudsman for the Armed Forces of
the Philippines (AFP) Casaclang deputized
respondent City Prosecutor of Manila Jesus
Guerrero to file the corresponding charges
against petitioner and to handle the
prosecution of the cases.
The Office of the City Prosecutor of Manila set it
for another round of preliminary investigation
after which City Prosecutor Guerrero issued the
questioned Resolution, " finding sufficient
ground to hold petitioner for trial" and ordering
the filing of the Information in court.
Three (3) Informations for falsification of public
documents were filed against petitioner.
Petitioner filed the instant petition assailing the
constitutionality of the Ombudsman Act (R.A.
No. 6770), on several grounds:
(a) Sections 15 and 17, RA 6770, insofar as
163
they empowers the Office of the Ombudsman
to conduct preliminary investigation and to
directly undertake criminal prosecutions , are
without constitutional basis. Concomitantly, the
Ombudsman does not possess the power to
conduct formal preliminary investigation
proceedings for the reason that formal
preliminary investigation proceedings
constitute an integral part of the process of
criminal prosecutions.
(b) The Office of the Ombudsman is a
constitutional body, belonging neither to the
legislative, executive nor judiciary branches. As
such, it is not empowered to conduct
preliminary investigations, as these pertain
exclusively to the executive branch.
(c) The unqualified grant of prosecutorial
powers on the Office of the Ombudsman is in
direct contravention of Article XI, Section 7 of
the 1987 Constitution which provides:
Sec. 7. The existing Tanodbayan shall hereafter
be known as the office of the Special
Prosecutor. It shall continue to function and
exercise its power as now or hereafter may be
provided by law, except those conferred on the
office of the Ombudsman created under this
Constitution.
Held:
Grant of prosecutorial powers to the
Ombudsman under RA 6770 is valid
1. In assailing Sections 15 and 17 of the
Ombudsman Act, insofar as it empowers the
Ombudsman to directly undertake criminal
prosecutions, for being without constitutional
basis, petitioner submits that under the 1987
Philippine Constitution, specifically in Section
13, Article XI, entitled "Accountability of
Public Officers", the powers of the Ombudsman
are clearly defined or delineated, to wit
2. Sec. 13. The Office of the Ombudsman shall
have the following powers, functions and
duties:
(1) Investigate on its own, or on complaint by
any person, any act or omission of any public
official, employee, office or agency, when such
act or omission appears to be illegal, unjust,
improper, or inefficient.
xxx
(3) Direct the officer concerned to take
appropriate action against a public official or
employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith
3. Petitioner argues that while Sec 13 par (1)
empowers the Ombudsman to conduct
investigations, the power to directly undertake
criminal prosecutions has been clearly withheld.
Sec 13 par (3) merely empowers the Office of
the Ombudsman "to direct the officer
concerned to take appropriate action and
recommend prosecution". Hence, petitioner
contends that the power of the Ombudsman is
limited to the mere issuance of the directives to
the appropriate officer, i.e., the Prosecutor, to
cause the filing of the information and the
prosecution thereof.
4. In Acop v. Office of the Ombudsman, the
court upheld the validity of the grant of
prosecutorial powers on the Ombudsman,
notwithstanding the intent of the framers of the
1987 Constitution to withhold such powers from
him. Notably, Constitutional Commission
recommended that the Legislature could,
through statute, prescribe such other powers,
functions and duties to the Ombudsman. This is
now embodied in paragraph 8, Section 13,
Article XI , 1987 Constitution.
5. The Ombudsman, under par 8, Section 13,
Article XI, 1987 Constitution, may be validly
empowered with prosecutorial functions by the
legislature, and this the latter did when it
passed R.A. No. 6670, which gave the
Ombudsman, among others, the power to
investigate and prosecute individuals on
matters and/or complaints referred or filed
before it.
Office of the Ombudsman is a distinct
constitutional body whose duties and
functions are provided for by the
Constitution itself
6. Petitioner contends that the Office of the
Ombudsman, being a constitutional body,
164
cannot exercise executive functions, such as
conducting preliminary investigation in criminal
cases. The contention is devoid of merit.
TheOffice of the Ombudsman is a distinct
constitutional body whose duties and functions
are provided for by the Constitution itself.
Considering that the power of the Ombudsman
to investigate and prosecute criminal cases
emanates as it does from the Constitution itself,
particularly, under paragraph 8, Section 13,
Article XI , which empowers the Ombudsman to
"exercise such other powers or perform such
other functions or duties" as Congress may
prescribe through legislation, it cannot be
logically argued that such power or the exercise
thereof is unconstitutional or violative of the
principle of separation of powers enshrined in
the Constitution.
Congress may remove some of the powers
of the Office of the Special Prosecutor
(formerly Tanodbayan) and transfer the
same to the Ombudsman
7. Petitioner contends that R.A. No. 6770,
insofar as it unqualifiedly vests prosecutorial
functions on the Ombudsman, infringes on
Section 7, Article XI of the Constitution, in that
it invariably diminishes the authority and power
lodged in the Office of the Special Prosecutor.
8. When one considers that by express
mandate of paragraph 8, Section 13, Article XI
of the Constitution, the Ombudsman may
"exercise such other powers or perform
functions or duties as may be provided by law,"
it is indubitable then that Congress has the
power to place the Office of the Special
Prosecutor under the Office of the Ombudsman.
In the same vein, Congress may remove some
of the powers granted to the Tanodbayan by
P.D. No. 1630 and transfer them to the
Ombudsman; or grant the Office of the Special
Prosecutor such other powers and functions
and duties as Congress may deem fit and wise.
This Congress did through the passage of R.A.
No. 6770(see Acop v. Office of the
Ombudsman)
Investigating prosecutor has discretion in
the determination of what constitute
sufficient evidence to establish "probable
cause" for filing an information
9. Petitioner alleges that the refusal by the City
Prosecutor and Assistant City Prosecutor to
conduct another preliminary investigation of
the anonymous complaint filed against
petitioner is tantamount to a denial of due
process.
10. Petitioner does not deny that the
Ombudsman actually conducted a preliminary
investigation of the charges against her.
Another round of preliminary investigation,
apart from the one conducted by the Office of
the Ombudsman, was also conducted by the
Office of the City Prosecutor of Manila.
Petitioner had likewise filed her comment on
the cases against her then pending with the
City Prosecutor. The PRC also submitted
evidence against petitioner in the same
proceedings. Finally, a memo of preliminary
investigation conducted by the City Prosecutor
was attached to the Informations eventually
filed against petitioner before the Ombudsman.
These pieces of evidence clearly indicate that a
second round of preliminary investigation was
in fact conducted by the City Prosecutor.
11. Neither is the alleged inherent weakness of
complainant's case, a ground to compel the
City Prosecutor to conduct another preliminary
investigation, apart from the one already
conducted and the one conducted earlier by
the Ombudsman. On this score, suffice it to
state that this Court has adopted a policy of
non-interference in the conduct of preliminary
investigations; and leaves to the investigating
prosecutor sufficient latitude of discretion in the
exercise of determination of what constitute
sufficient evidence as will establish "probable
cause" for filing of information against a
supposed offender.
12. The rule on non-interference is based not
only upon the investigatory and prosecutory
powers granted by the Constitution to the
Office of the Ombudsman but upon practicality
as well. Otherwise, the functions of the courts
will be grievously hampered by innumerable
petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the
Ombudsman with regard to complaints filed
before it, in much the same way that the courts
would be extremely swamped if they could be
compelled to review the exercise of discretion
on the part of the prosecuting attorneys each
165
time they decide to file an information in court
or dismiss a complaint by a private
complainant." (see Cruz, Jr. v. People)
An injunction will not generally lie to
restrain a criminal action
13. Petitioner contends that the Informations
filed before the sala of respondent judge,
allegedly without the benefit of a preliminary
investigation conducted by City Prosecutor, are
characterized by such fatal defects that would
warrant a writ of prohibition to enjoin
respondent judge from taking any further action
thereon. Petitioner's prayer for injunction to
restrain the criminal action against her is not
legally permissible.
14. An injunction will not generally lie to
restrain a criminal action. In Brocka v.
Enriel , the court laid the following exceptions
to the rule (1) when the injunction is necessary
to afford adequate protection to the
constitutional rights of the accused; (2) when it
is necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
actions; (3) when there is a prejudicial question
which is subjudice; (4) when the acts of the
officer are without or in excess of authority; (5)
where the prosecution is under an invalid law,
ordinance or regulation; (6) when double
jeopardy is clearly apparent; (7) where the
Court has no jurisdiction over the offense; (8)
where it is a case of persecution rather than
prosecution; (9) where the charges are
manifestly false and motivated by the lust for
vengeance; and (10) when there is clearly no
prima facie case against the accused and a
motion to quash on that ground has been
denied.
15. Petitioner has not shown that her case falls
within any of the recognized exceptions.
48. Case Summary
Gonzales III vs. Office of the President
(2014)
G.R. No. 196231 and G.R. No. 196232 | 2014-
01-28
Subject:
Independence of the Ombudsman; Disciplinary
jurisdiction of the President; Removal of Non-
Impeachable Officers
Facts:
Gonzales Petition (G.R. No. 196231)
Manila Police District Senior Inspector Rolando
Mendoza, together with four others, (Mendoza
group) was the subject of an administrative
charge for grave misconduct filed before the
National Police Commission (NAPOLCOM).
Emilio Gonzales, Deputy Ombudsman for
Military and Other Law Enforcement Officers
(MOLEO) took over the case.
The Ombudsman Merceditas Gutierrez
approved Gonzales drafted decision finding the
Mendoza group guilty of grave misconduct and
imposing on them the penalty of dismissal from
the service. The Mendoza group filed a motion
for reconsideration.
On August 23, 2010, pending final action by the
Ombudsman on the Mendoza case, Mendoza
hijacked a tourist bus and held the passengers
as hostages. The incident resulted in the deaths
of Mendoza and several others on board the
hijacked bus.
President Aquino directed the conduct of a joint
investigation of the incident. The joint
committee (IIRC) found Ombudsman Gutierrez
and Gonzales accountable, in particular, the
unjustified delay in the resolution of Mendoza's
motion for reconsideration spanning nine
months precipitated the desperate resort to
hostage-taking.
Gonzales was formally charged before the
Office of the President (OP) for Gross Neglect of
Duty and/or Inefficiency in the Performance of
Official Duty and for Misconduct in Office. The
OP found Gonzales guilty as charged and
dismissed him from the service.
Gonzales contends that the OP has no
administrative disciplinary jurisdiction over a
Deputy Ombudsman. Under Section 21 of RA
No. 6770, it is the Ombudsman who exercises
administrative disciplinary jurisdiction over the
Deputy Ombudsman.
Sulit Petition (G.R. No. 196232)
166
In 2005, The Office of the Ombudsman charged
Major General Carlos F. Garcia and several
others before the Sandiganbayan with plunder
and money laundering.
In 2010, the Office of the Ombudsman, through
Sulit and her prosecutorial staff, entered into a
plea bargaining agreement with Garcia whereby
he would be allowed to plead guilty to lesser
offenses in exchange for surrendering the
assets he was charged to have illegally taken.
Although the Sandiganbayan approved the
Agreement, the public outrage it engendered
prompted the House of Representatives to
conduct an investigation. The House Committee
found that Sulit and her deputies committed
culpable violations of the Constitution and
betrayal of public trust -- grounds for removal
under Section 8(2) of RA No. 6770 -- and
recommended to the President the dismissal
from the service of Sulit.
The OP initiated an administrative disciplinary
proceeding against Sulit. Sulit questioned the
OP 's jurisdiction. Nevertheless, the OP set the
case for preliminary investigation, prompting
Sulit to seek relief from the Supreme Court
The SC Ruling subject of the MR
The Gonzales and Sulit petition both challenged
the constitutionality of Section 8(2) of Republic
Act (RA) No. 6770. In its September 4, 2012
Decision, the SC upheld the constitutionality of
Section 8(2) of RA No. 6770 and ruled that the
President has disciplinary jurisdiction over a
Deputy Ombudsman and a Special Prosecutor.
However, the SC reversed the decision of the
OP and ordered the reinstatement of Gonzales.
Hence, the OP filed the present motion for
reconsideration.
Held:
Section 8(2) of RA No. 6770 is unconstitutional
with respect to the Office of the Ombudsman
but constitutional as to the Office of the Special
Prosecutor as the latter does not enjoy
independence under the Constitution.
1. The issue of whether a Deputy Ombudsman
(Gonzales) may be subjected to the
administrative disciplinary jurisdiction of the
President (concurrently with that of the
Ombudsman) is a justiciable - not a political -
question.
2. A justiciable question is one which is
inherently susceptible of being decided on
grounds recognized by law, as where the court
finds that there are constitutionally-imposed
limits on the exercise of the powers conferred
on a political branch of the government.
3. In resolving the petitions, we do not inquire
into the wisdom of the Congress' choice to
grant concurrent disciplinary authority to the
President. Our inquiry is limited to whether such
statutory grant violates the Constitution,
particularly whether Section 8(2) of RA No.
6770 violates the core constitutional principle
of the independence of the Office of the
Ombudsman as expressed in Section 5, Art. XI
of the Constitution.
Independence of constitutional bodies vs
the Ombudsman's independence
4. The independence enjoyed by the Office of
the Ombudsman and by the Constitutional
Commissions shares certain characteristics -
they do not owe their existence to any act of
Congress, but are created by the Constitution
itself; additionally, they all enjoy fiscal
autonomy.
5. The Constitutional Commissions (CSC,
COMELEC, COA), which have been
characterized under the Constitution as
"independent," are not under the control of the
President, even if they discharge functions that
are executive in nature. The kind
of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior - but is
similar in degree and kind - to the
independence similarly guaranteed by the
Constitution to the Constitutional Commissions
since all these offices fill the political interstices
of a republican democracy that are crucial to its
existence and proper functioning

Political Question Section 8(2) of RA No. 6770 is

unconstitutional
167
6. Section 8(2) of RA No. 6770 vesting
disciplinary authority in the President over the
Deputy Ombudsman violates the independence
of the Office of the Ombudsman and is
thus unconstitutional.
7. Subjecting the Deputy Ombudsman to
discipline and removal by the President, whose
own alter egos and officials in the Executive
Department are subject to the Ombudsman's
disciplinary authority, cannot but seriously
place at risk the independence of the Office of
the Ombudsman itself.
8. The Office of the Ombudsman, by express
constitutional mandate, includes its key
officials, all of them tasked to support the
Ombudsman in carrying out her
mandate. What is true for the Ombudsman
must be equally and necessarily true for
her Deputies who act as agents of the
Ombudsman in the performance of their
duties. The Ombudsman can hardly be
expected to place her complete trust in her
subordinate officials who are not as
independent as she is, if only because they are
subject to pressures and controls external to
her Office. For these reasons, Section 8(2) of
RA No. 6770 (providing that the President
may remove a Deputy Ombudsman) should
be declared void.
9. The Executive power to remove and
discipline key officials of the Office of the
Ombudsman, or to exercise any power over
them, would result in an absurd situation
wherein the Office of the Ombudsman is given
the duty to adjudicate on the integrity and
competence of the very persons who can
remove or suspend its members.
10. That a judicial remedy is available and that
the President's power of removal is limited to
specified grounds are dismally inadequate
when balanced with the constitutional principle
of independence. The mere filing of an
administrative case against the Deputy
Ombudsman and the Special Prosecutor
before the OP can already result in their
suspension and can interrupt the
performance of their functions, in violation
of Section 12, Article XI of the Constitution.
The mutual-protection argument
for crafting Section 8(2)of RA No. 6770
11. In crafting Section 8(2) of RA No. 6770,
Congress apparently addressed the concern
that a lack of an external check against the
Deputy Ombudsman would result in mutual
protection between the Ombudsman and her
Deputies.
12. This concern stands on shaky grounds since
it ignores the existing checks and balances
already in place. On the one hand, the
Ombudsman's Deputies cannot protect the
Ombudsman because she is subject to the
impeachment power of Congress. On the other
hand, the Ombudsman's attempt to cover up
the misdeeds of her Deputies can be
questioned before the Court on appeal or
certiorari. The same attempt can likewise
subject her to impeachment.
13. The judicial recourse available is consistent
with the nature of the Supreme Court as a non-
political independent body mandated by the
Constitution to settle judicial and quasi-judicial
disputes, whose judges and employees are not
subject to the disciplinary authority of the
Ombudsman and whose neutrality would be
less questionable. The Members of the Court
themselves may be subjected to the
impeachment power of Congress.
Congress Power of Removal of Non-
Impeachable Officers
14. Under Section 2, Article XI of the 1987
Constitution, Congress is empowered to
determine the modes of removal from office of
all public officers and employees except the
President, the Vice-President, the Members of
the Supreme Court, the Members of the
Constitutional Commissions, and the
Ombudsman, who are all impeachable officials.
15. While the manner and cause of removal are
left to congressional determination, this must
still be consistent with constitutional
guarantees and principles. The congressional
determination of the identity of the disciplinary
authority is not a blanket authority for Congress
to repose it on whomsoever Congress chooses
without running afoul of the independence
168
enjoyed by the Office of the Ombudsman and
without disrupting the delicate check and
balance mechanism under the Constitution.
The OP Decision Dismissal of Deputy
Ombudsman Gonzales for Gross
Negligence and Grave Misconduct
16. The OP's decision found Gonzales guilty of
Gross Neglect of Duty and of Grave Misconduct.
17. Gross negligence refers to negligence
characterized by the want of even the slightest
care, acting or omitting to act in a situation
where there is a duty to act, not inadvertently
but willfully and intentionally, with a conscious
indifference to consequences insofar as other
persons may be affected. In the case of public
officials, there is gross negligence when a
breach of duty is flagrant and palpable
18. Gonzales cannot be guilty of gross neglect
of duty and/or inefficiency since he acted on
the case forwarded to him within nine days. In
finding Gonzales guilty, the OP relied on Section
8, Rule III of Administrative Order No. 7 in ruling
that Gonzales should have acted on Mendoza's
Motion for Reconsideration within five days.
Even if we consider this provision to be
mandatory, the period it requires cannot apply
to Gonzales since he is a Deputy Ombudsman
whose obligation is to review the case; he is not
simply a Hearing Officer tasked with the initial
resolution of the motion
19. The OP's claims that Gonzales could have
supervised his subordinates to promptly act on
Mendoza's motion and apprised the
Tanodbayan of the urgency of resolving the
same are similarly groundless. The Office of the
Ombudsman handles numerous cases and we
cannot conclusively state, as the OP appears to
suggest, that Mendoza's case should have been
prioritized over other similar cases.
20. Equally important, the constitutional
guarantee of "speedy disposition of
cases" before, among others, quasi-judicial
bodies (like the Office of the Ombudsman),
is itself a relative concept. Thus, the delay, if
any, must be measured in this objective
constitutional sense.
The Special Prosecutor: The Constitutional
Issue
21. The 1987 Constitution created a new,
independent Office of the Ombudsman. The
existing Tanodbayan at the time became the
Office of the Special Prosecutor under the 1987
Constitution. While the composition of the
independent Office of the Ombudsman under
the 1987 Constitution does not textually include
the Special Prosecutor, the
unconstitutionality of Section 8(2) of RA
No. 6770 should equally apply to the
Special Prosecutor.
22. By constitutional design, the Special
Prosecutor is by no means an ordinary
subordinate but one who effectively and
directly aids the Ombudsman in the exercise of
his/her duties, which include investigation and
prosecution of officials in the Executive
Department
23. Thus, even if the Office of the Special
Prosecutor is not expressly made part of the
composition of the Office of the Ombudsman,
the role it performs as an organic component of
that Office militates against a differential
treatment between the Ombudsmans
Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true
for the Ombudsman must be equally true, not
only for her Deputies but, also for other lesser
officials of that Office who act directly as agents
of the Ombudsman herself in the performance
of her duties.
24. Under the present Constitution, there is
every reason to treat the Special Prosecutor to
be at par with the Ombudsman's deputies, at
least insofar as an extraneous disciplinary
authority is concerned, and must also enjoy the
same grant of independence under the
Constitution.
25. However, by a vote of 8-7, the Court
resolved to maintain the validity of
Section 8(2) of RA No. 6770 insofar as
Sulit is concerned. The Court did not
consider the Office of the Special
Prosecutor to be constitutionally within
the Office of the Ombudsman and is,
hence, not entitled to the independence
the latter enjoys under the Constitution.
169
49. Case Summary
Macalino vs. Sandiganbayan (2002)
G.R. Nos. 140199-200 | 2002-02-06
Subject: PNCC employee is not a public officer
within the jurisdiction of the Sandiganbayan
Facts:
The Special Prosecutor, Office of the
Ombudsman, with the approval of the
Ombudsman, filed with the Sandiganbayan two
informations against petitioner Felicito Macalino
and Liwayway Tan charging them with estafa
through falsification of official documents and
frustrated estafa through falsification of
mercantile documents.
The information charged that petitioner
Macalino, being then the Assistant Manager of
the Treasury Division and the Head of the Loans
Administration & Insurance Section of the
Philippine National Construction Corporation
(PNCC), a government-controlled corporation,
conspired with his wife, Liwayway Tan, being
then the owner of Wacker Marketing, to falsely
prepare a demand draft in the amount of
P983,682.11 by superimposing the name
"Wacker Marketing" as payee instead of
Bankers Trust Company which was the real
payee. As a result of such acts of falsification,
PNB Buendia issued demand drafts payable to
Wacker Marketing, which Liwayway Tan
thereafter exchanged with PNB Balanga Branch
for checks which were deposited into the
account of Wacker Marketing.
Similarly, Macalino falsified PNB Check No.
552312 for P2,250,000.00 by altering the payee
indicated therein to make it appear that the
check was payable to Wacker Marketing instead
of Interbank.
Petitioner moved for leave to file a motion to
dismiss on the ground that the Sandiganbayan
has no jurisdiction over him since he is not a
public officer because the (PNCC, formerly the
Construction and Development Corporation of
the Philippines (CDCP), is not a government-
owned or controlled corporation with original
charter.
The Sandiganbayan denied petitioner's motion
to dismiss for lack of merit.
Hence, this petition. The sole issue raised is
whether petitioner, an employee of the PNCC, is
a public officer within the coverage of R. A. No.
3019 (Antigraft and Corrupt Practices Act).
Held:
PNCC employee is not a public officer
within the jurisdiction of the
Sandiganbayan
1. A public officer is defined under Republic Act
No. 3019, as follows:
"Sec. 2. (a) xxx xxx xxx.
"(b) Public officer includes elective and
appointive officials and employees, permanent
or temporary, whether in the unclassified or
classified or exempted service receiving
compensation, even nominal, from the
government as defined in the preceding
paragraph."
2. Article IX-B, Section 2 (1) of the 1987
Constitution provides:
"The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of
the Government, including government-owned
and controlled corporations with original
charters."
3. Republic Act No. 6770, echoing Article XI of
the 1987 Constitution, provides:
"Section 15. Powers, Functions and Duties -The
Office of the Ombudsman shall have the
following powers, functions and duties:
"1. Investigate and prosecute on its own or on
complaint by any person, any act or omission of
any public officer or employee, office or
agency, when such act or omission appears to
be illegal, unjust, improper or inefficient. x x x.
"2. Direct, upon complaint or at its own
instance, any officer or employee of the
Government, or of any subdivision, agency or
instrumentality thereof, as well as any
government-owned or controlled
corporationswith original charters, to perform
and expedite any act or duty required by law,
170
or to stop, prevent, and correct any abuse or
impropriety in the performance of duties."
4. Inasmuch as the PNCC has no original
charter as it was incorporated under the
general law on corporations, it follows
inevitably that petitioner is not a public officer
within the coverage of R. A. No. 3019, as
amended. Thus, the Sandiganbayan has no
jurisdiction over him.
5. The only instance when the Sandiganbayan
has jurisdiction over a private individual is
when the complaint charges him either as a co-
principal, accomplice or accessory of a public
officer who has been charged with a crime
within the jurisdiction of Sandiganbayan.
6. The 1973 Constitution included as public
officers, officials and employees of corporations
owned and controlled by the government
though organized and existing under the
general corporation law. The 1987 Constitution
excluded such corporations.
7. The crimes charged against petitioner were
committed in 1989 and 1990. The criminal
actions were instituted in 1992. It is well-settled
that "the jurisdiction of a court to try a criminal
case is determined by the law in force at the
institution of the action.
50. Case Summary
Garcia vs. Mojica (1999)
G.R. No. 139043 | 1999-09-10
Subject: Authority of Ombudsman to conduct
administrative investigations; Authority of
Ombudsman (and Deputy Ombudsman) to
preventively suspend an official subject to its
administrative investigation; Determination of
whether or not the evidence of guilt is strong as
to warrant preventive suspension, as well as
the period of such suspension, rests with the
Ombudsman (but may be questioned via
certiorari under Rule 65); Evidence sufficiently
strong to justify preventive suspension but
imposing maximum period of suspension is
unwarranted; Preventive suspension (max 60
days) under the Local Government Code is
distinct from preventive suspension (max 6
months) under the Ombudsman Law;
Preventive suspension order may be issued
even before the charges against the official
concerned is heard; A reelected local official
may not be held administratively accountable
for misconduct committed during his prior term
of office (Aguinaldo doctrine)
Facts:
Petitioner Alvin B. Garcia, in his capacity as
Cebu City mayor, signed a contract with F.E.
Zuellig for the supply of asphalt to the city. The
contract was signed on May 7, 1998 or just four
days before the date of the 1998 election. The
contract covers the period 1998-2001 which
was to commence on September 1998 when
the first delivery should have been made by F.E.
Zuellig.
Sometime in 1999, news reports came out
regarding the alleged anomalous purchase of
asphalt by Cebu City. This prompted the Office
of the Ombudsman (Visayas) to conduct an
inquiry into the matter. The special prosecution
officer of the Office of the Ombudsman
assigned to conduct the inquiry, after
investigation, recommended that the inquiry be
upgraded to criminal and administrative cases
against petitioner Garcia and eight other city
officials involved. Respondent Arturo Mojica,
Deputy Ombudsman for the Visayas, approved
this recommendation.
The Office of the Ombudsman issued the order
placing petitioners and the eight city officials
under preventive suspension without pay for
the maximum period of six months and to
cease and desist from holding office
immediately.
Petitioner filed a motion for reconsideration of
said order, which motion was denied. Hence,
the present petition assailing the validity of the
preventive suspension order.
Petitioner argued that:
(a) Ombudsman is without jurisdiction over the
administrative case, considering that the
alleged act (contract signing) was committed
during his previous term, and petitioner is
already serving a succeeding term after being
reelected for the same position
(b) Section 63 of the Local Government Code
mandates that the preventive suspension of
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local elective officials be ordered only after the Ombudsman) to preventively suspend an
issues have been joined, and only for a period official subject to its administrative
not in excess of sixty (60) days. investigation

(c) the order was based on evidence on record 5. The power of the Office of the Ombudsman
consisting solely of a hearsay affidavit, and to preventively suspend an official subject to its
inadmissible newspaper reports. administrative investigation is provided by
specific provision of law. Under Section 24 of
Held: R.A. 6770

Authority of Ombudsman to conduct "SEC. 24. Preventive Suspension. - The

administrative investigations
1. The authority of the Ombudsman to conduct
administrative investigations is mandated by no
less than the Constitution. Under Article XI,
Section 13[1], the Ombudsman has the power
to:
"investigate on its own, or on complaint by any
person, any act or omission of any public
official, employee, office or agency, when such
act or omission appears to be illegal, unjust,
improper, or inefficient."
2. R.A. 6770, the Ombudsman Law, further
grants the Office of the Ombudsman the
statutory power to conduct administrative
investigations. (see Section 19, RA 6770).
3. Section 21 of R.A. 6770 names the officials
subject to the Ombudsman's disciplinary
authority:
Ombudsman or his Deputy may preventively
suspend any officer or employee under his
authority pending an investigation, if in his
judgment the evidence of guilt is strong, and
(a) the charge against such officer or employee
involves dishonesty, oppression or grave
misconduct or neglect in the performance of
duty; (b) the charges would warrant removal
from the service; or (c) the respondent's
continued stay in office may prejudice the case
filed against him.
The preventive suspension shall continue until
the case is terminated by the Office of the
Ombudsman butnot more than six months,
without pay, except when the delay in the
disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the
period of such delay shall not be counted in
computing the period of suspension herein
provided."

"SEC. 21. Officials Subject To Disciplinary 6. We have previously interpreted the phrase
Authority; Exceptions. - The Office of the "under his authority" to mean that the
Ombudsman shall have disciplinary authority Ombudsman can preventively suspend all
over all elective and appointive officials of the officials under investigation by his office,
Government and its subdivisions, regardless of the branch of government in
instrumentalities and agencies, including which they are employed, excepting of course
Members of the Cabinet, local government, those removable by impeachment, members of
government-owned or controlled corporations Congress and the Judiciary.
and their subsidiaries, except over officials who
may be removed only by impeachment or over 7. The power to preventively suspend is
Members of Congress, and the Judiciary." available not only to the Ombudsman but also
to the Deputy Ombudsman. This is the clear
4. Petitioner is an elective local official accused import of Section 24 of R.A. 6770 . Hence, there
of grave misconduct and dishonesty. That the can be no question in this case as to the power
Office of the Ombudsman may conduct an and authority of respondent Deputy
administrative investigation into the acts Ombudsman Mojica to issue an order of
complained of, appears clear from the preventive suspension against an official like
foregoing provisions of R.A. 6770. the petitioner, to prevent that official from
using his office to intimidate or influence
Authority of Ombudsman (and Deputy witnesses or to tamper with records that might
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be vital to the prosecution of the case against
him.
Determination of whether or not the
evidence of guilt is strong as to warrant
preventive suspension, as well as the
period of such suspension, rests with the
Ombudsman (but may be questioned via
certiorari under Rule 65)
8. Preventive suspension under Sec. 24, R.A.
6770 may be imposed when, among other
factors, the evidence of guilt is strong. The
period for which an official may be preventively
suspended must not exceed six months. In this
case, petitioner was preventively suspended
and ordered to cease and desist from holding
office for the entire period of six months, which
is the maximum provided by law.
9. The determination of whether or not the
evidence of guilt is strong as to warrant
preventive suspension rests with the
Ombudsman. The discretion as regards the
period of such suspension also necessarily
belongs to the Ombudsman, except that he
cannot extend the period of suspension beyond
that provided by law.
10. But, in our view, both the strength of the
evidence to warrant said suspension and the
propriety of the length or period of suspension
imposed on petitioner are properly raised in this
petition for certiorari and prohibition. These
equitable remedies under Rule 65 of the Rules
of Court precisely exist to provide prompt relief
where an "officer exercising judicial or quasi-
judicial functions has acted...with grave abuse
of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the
ordinary course of law." (See Rule 65, Sec. 1).
Evidence sufficiently strong to justify
preventive suspension but imposing
maximum period of suspension is
unwarranted
11. The recommendation that petitioner be
preventively suspended was based on an initial
investigation purportedly showing that: (1) the
contract for supply of asphalt to Cebu City was
designed to favor F.E. Zuellig, (2) the amount
quoted in the contract was too expensive
compared to the amount for which asphalt may
be bought from local suppliers such as Shell
and Petron, particularly considering that the
amount was fixed in dollars and was payable in
pesos, thus exposing the city government to
the risks attendant to a fluctuating exchange
rate, and (3) the interest of the city under the
contract is not protected by adequate security.
These findings were based on the contract itself
and on letters from Bitumex and Credit
Lyonnais. There were also letters from Shell and
Petron that were replies to the Office of the
Ombudsman's (Visayas) inquiry on whether or
not they could supply Cebu City with asphalt
and on what terms. Given these findings, we
cannot say that there is no evidence sufficiently
strong to justify the imposition of preventive
suspension against petitioner. But considering
its purpose and the circumstances in the case
brought before us, it does appear to us that
the imposition of the maximum period of six
months is unwarranted.
12. If the purpose of the preventive suspension
was to enable the investigating authority to
gather documents without intervention from
petitioner, then, from respondents' submission,
we can only conclude that this purpose was
already achieved, during the nearly month-long
suspension of petitioner from June 25 to July 19,
1999. Granting that now the evidence against
petitioner is already strong, it is clear to us that
the maximum six-month period is excessive
and definitely longer than necessary for the
Ombudsman to make its legitimate case
against petitioner. We must conclude that the
period during which petitioner was already
preventively suspended, has been sufficient for
the lawful purpose of preventing petitioner from
hiding and destroying needed documents, or
harassing and preventing witnesses who wish
to appear against him.
Preventive suspension (max 60 days)
under the Local Government Code is
distinct from preventive suspension (max
6 months) under the Ombudsman Law
13. Petitioner claims that the Local
Government Code (LGC) should apply to this
case of an elective local official. Under the LGC,
preventive suspension may only be imposed
after the issues are joined, and only for a
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maximum period of sixty days. Here, petitioner
was suspended without having had the chance
to refute first the charges against him, and for
the maximum period of six months provided by
the Ombudsman Law. But administrative
complaints commenced under the Ombudsman
Law are distinct from those initiated under the
Local Government Code. The shorter period of
suspension under the Local Government Code
is intended to limit the period of suspension
that may be imposed by a mayor, a governor,
or the President, who may be motivated by
partisan political considerations. In contrast the
Ombudsman, who can impose a longer period
of preventive suspension, is not likely to be
similarly motivated because it is a administratively
constitutional body.
14. Ombudsman has not been stripped of his
power to investigate local elective officials by
virtue of the Local Government Code. Indeed,
there is nothing in the Local Government Code
to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions
of the Ombudsman Act. The two statutes on the
specific matter in question are not so
inconsistent, let alone irreconcilable, as to
compel us to only uphold one and strike down
the other. (see Hagad v. Gozo-Dadole)
Preventive suspension order may be
issued even before the charges against
the official concerned is heard
15. As to whether a local elective official may
be preventively suspended even before the
issues could be joined, it has been held in other
cases that there could be preventive
suspension even before the charges against the
official are heard, or before the official is given
an opportunity to prove his
innocence. Preventive suspension is merely a
preliminary step in an administrative
investigation and is not in any way the final
determination of the guilt of the official
concerned.
16. Petitioner argues that, pursuant to Section
26(2) of the Ombudsman Law, before an inquiry
may be converted into a full-blown
administrative investigation, the official
concerned must be given 72 hours to answer
the charges against him. In his case, petitioner
says the inquiry was converted into an
administrative investigation without him being
given the required number of hours to answer.
17. Indeed, it does not appear that petitioner
was given the requisite 72 hours to submit a
written answer to the complaint against him.
This, however, does not make invalid the
preventive suspension order issued against
him. As we have earlier stated, a preventive
suspension order may be issued even before
the charges against the official concerned is
heard.
A reelected local official may not be held
accountable for
misconduct committed during his prior
term of office (Aguinaldo doctrine)
18. Petitioner contends that, per the ruling
in Aguinaldo v. Santos, his reelection has
rendered the administrative case filed against
him moot and academic. This is because
reelection operates as a condonation by the
electorate of the misconduct committed by an
elective official during his previous term.
19. Respondents, on the other hand, contend
that while the contract in question was signed
during the previous term of petitioner, it was to
commence or be effective only on September
1998 or during his current term. Hence, the
Aguinaldo doctrine cannot apply, because what
is involved in this case is a misconduct
committed during a previous term but to be
effective during the current term. Moreover,
respondents point out that the contract entered
into by petitioner with F.E. Zuellig was signed
just four days before the date of the elections.
It was not made an issue during the election,
and so the electorate could not be said to have
voted for petitioner with knowledge of this
particular aspect of his life and character.
20. In a number of cases, the court has
repeatedly held that a reelected local official
may not be held administratively accountable
for misconduct committed during his prior term
of office. The rationale for this holding is that
when the electorate put him back into office, it
is presumed that it did so with full knowledge of
his life and character, including his past
misconduct. If, armed with such knowledge, it
still reelects him, then suchreelection is
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considered a condonation of his past misdeeds.
21. That the people voted for an official with
knowledge of his character is presumed,
precisely to eliminate the need to determine, in
factual terms, the extent of this knowledge.
Such an undertaking will obviously be
impossible. Our rulings on the matter do not
distinguish the precise timing or period when
the misconduct was committed, except that it
must be prior to the official's reelection.
22. In Salalima v. Guingona, the court absolved
Albay governor Romeo R. Salalima of his
administrative liability as regards a retainer
agreement he signed in favor of a law firm
during his previous term, although
disbursements of public funds to cover
payments under the agreement were still being
done during his subsequent term. Petitioner
argues that, following Salalima, the doctrine in
Aguinaldo applies even where the effects of the
act complained of are still evident during the
subsequent term of the reelected official.
23. The court, applying the doctrine in
Salalima, ruled that petitioner cannot anymore
be held administratively liable for an act done
during his previous term, that is, his signing of
the contract with F.E. Zuellig.
24. While petitioner can no longer be held
administratively liable for signing the contract
with F. E. Zuellig, however, this should not
prejudice the filing of any case other than
administrative against petitioner. Our ruling in
this case, may not be taken to mean the total
exoneration of petitioner for whatever
wrongdoing, if any, might have been committed
in signing the subject contract.
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