POWERS
WON respondents violate constitutional and statutory provisions on public consultation and the
JUDICIAL REVIEW
Province of North Cotabato, Province of Zamboanga Del Norte, City of Iligan, City of
Zamboanga, petitioners in intervention Province of Sultan Kudarat, City of Isabela and
Municipality of Linnamon, Intervenors Franklin Drilon and Adel Tamano and Sec. Mar Roxas
-vs-
Ermita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura Administrator National
Mapping & Resource Information Authority and Davide Jr. and respondents in intervention
Muslim Multi-Sectoral Movement for Peace and Development and Muslim Legal Assistance
Foundation Inc.,
Facts:
Subject of this case is the Memorandum of Agreement on the Ancestral Domain (MOA-AD) which is
scheduled to be signed by the Government of the Republic of the Philippines and the MILF in
August 05, 2008. Five cases bearing the same subject matter were consolidated by this court
namely:-
GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer to
declare unconstitutional and to have the MOA-AD disclosed to the public and be open
for public consultation.
GR 183752 by the City of Zamboanga et al on its prayer to declare null and void said
MOA-AD and to exclude the city to the BJE.
GR 183893 by the City of Iligan enjoining the respondents from signing the MOA-AD
and additionally impleading Exec. Sec. Ermita.
GR 183951 by the Province of Zamboanga del Norte et al, praying to declare null and
void the MOA-AD and without operative effect and those respondents enjoined from
executing the MOA-AD.
GR 183692 by Maceda, Binay and Pimentel III, praying for a judgment prohibiting and
permanently enjoining respondents from formally signing and executing the MOA-AD
and or any other agreement derived therefrom or similar thereto, and nullifying the
MOA-AD for being unconstitutional and illegal and impleading Iqbal.
The MOA-AD is a result of various agreements entered into by and between the government
and the MILF starting in 1996; then in 1997, they signed the Agreement on General Cessation of
Hostilities; and the following year, they signed the General Framework of Agreement of Intent on
August 27, 1998. However, in 1999 and in the early of 2000, the MILF attacked a number of
municipalities in Central Mindanao. In March 2000, they took the hall of Kauswagan, Lanao del
Norte; hence, then Pres. Estrada declared an all-out war-which tolled the peace negotiation. It was
when then Pres. Arroyo assumed office, when the negotiation regarding peace in Mindanao
continued. MILF was hesitant; however, this negotiation proceeded when the government of
Malaysia interceded. Formal peace talks resumed and MILF suspended all its military actions. The
Tripoli Agreement in 2001 lead to the ceasefire between the parties. After the death of MILF
Chairman Hashim and Iqbal took over his position, the crafting of MOA-AD in its final form was
born.
MOA-AD Overview
This is an agreement to be signed by the GRP and the MILF. Used as reference in the birth of this
MOA-AD are the Tripoli Agreement, organic act of ARMM, IPRA Law, international laws such as ILO
Convention 169, the UN Charter etc., and the principle of Islam i.e compact right entrenchment (law
of compact, treaty and order). The body is divided into concepts and principles, territory, resources,
and governance.
Embodied in concepts and principles, is the definition of Bangsamoro as all indigenous peoples of
Mindanao and its adjacent islands. These people have the right to self- governance of their
Bangsamoro homeland to which they have exclusive ownership by virtue of their prior rights of
occupation in the land. The MOA-AD goes on to describe the Bangsamoro people as "the First
Nation' with defined territory and with a system of government having entered into treaties of amity
and commerce with foreign nations." It then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro.
As defined in the territory of the MOA-AD, the BJE shall embrace the Mindanao-Sulu-Palawan
geographic region, involving the present ARMM, parts of which are those which voted in the
inclusion to ARMM in a plebiscite. The territory is divided into two categories, A which will be
subject to plebiscite not later than 12 mos. after the signing and B which will be subject to
plebiscite 25 years from the signing of another separate agreement. Embodied in the MOA-AD that
the BJE shall have jurisdiction over the internal waters-15kms from the coastline of the BJE territory;
they shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao;
and that within these territorial waters, the BJE and the government shall exercise joint jurisdiction,
authority and management over all natural resources. There will also be sharing of minerals in the
territorial waters; but no provision on the internal waters.
Included in the resources is the stipulation that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have the option to establish trade
missions in those countries, as well as environmental cooperation agreements, but not to include
aggression in the GRP. The external defense of the BJE is to remain the duty and obligation of the
government. The BJE shall have participation in international meetings and events" like those of the
ASEAN and the specialized agencies of the UN. They are to be entitled to participate in Philippine
official missions and delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues involving the bodies of
water adjacent to or between the islands forming part of the ancestral domain. The BJE shall also
have the right to explore its resources and that the sharing between the Central Government and
the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE. And
they shall have the right to cancel or modify concessions and TLAs.
And lastly in the governance, the MOA-AD claims that the relationship between the GRP and MILF
is associative i.e. characterized by shared authority and responsibility. This structure of governance
shall be further discussed in the Comprehensive Compact, a stipulation which was highly contested
before the court. The BJE shall also be given the right to build, develop and maintain its own
institutions, the details of which shall be discussed in the comprehensive compact as well.
Issues:
1. WON the petitions have complied with the procedural requirements for the exercise of judicial
review
2.
right to information when they negotiated and later initialed the MOA-AD; and
3. WON the contents of the MOA-AD violated the Constitution and the laws
Ruling:
The SC declared the MOA-AD contrary to law and the Constitution.
On the Procedural Issue
1st issue: As regards the procedural issue, SC upheld that there is indeed a need for the exercise of
judicial review.
The power of judicial review is limited to actual cases or controversy, that is the court will decline on
issues that are hypothetical, feigned problems or mere academic questions. Related to the
requirement of an actual case or controversy is the requirement of ripeness. The contention of the
SolGen is that there is no issue ripe for adjudication since the MOA-AD is only a proposal and does
not automatically create legally demandable rights and obligations. Such was denied.
The SC emphasized that the petitions are alleging acts made in violation of their duty or in grave
abuse of discretion. Well-settled jurisprudence states that acts made by authority which exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution and
statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an
actual case or controversy ripe for adjudication exists. When an act of a branch of government is
seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty
of the judiciary to settle the dispute. This is aside from the fact that concrete acts made under the
MOA-AD are not necessary to render the present controversy ripe and that the law or act in
question as not yet effective does not negate ripeness.
With regards to the locus standi, the court upheld the personalities of the Province of Cotabato,
Province of Zamboanga del norte, City of Iligan, City of Zamboanga, petitioners in intervention
Province of Sultan Kudarat, City of Isabela and Municipality of Linnamon to have locus standi since
it is their LGUs which will be affected in whole or in part if include within the BJE. Intervenors
Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government
funds would be expended for the conduct of an illegal and unconstitutional plebiscite to delineate the
BJE territory. On that score alone, they can be given legal standing. Senator Mar Roxas is also
given a standing as an intervenor. And lastly, the Intervening respondents Muslim Multi-Sectoral
Movement for Peace and Development, an advocacy group for justice and the attainment of peace
and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-
government organization of Muslim lawyers since they stand to be benefited or prejudiced in the
resolution of the petitions regarding the MOA-AD.
On the contention of mootness of the issue considering the signing of the MOA-AD has already
been suspended and that the President has already disbanded the GRP, the SC disagrees. The
court reiterates that the moot and academic principle is a general rule only, the exceptions, provided
in David v. Macapagal-Arroyo, that it will decide cases, otherwise moot and academic, if it finds that
(a) there is a grave violation of the Constitution; (b) the situation is of exceptional character and
paramount public interest is involved; (c) the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and (d) the case is capable of
repetition yet evading review; and that where there is a voluntary cessation of the activity
complained of by the defendant or doer, it does not divest the court the power to hear and try the
case especially when the plaintiff is seeking for damages or injunctive relief.
Clearly, the suspension of the signing of the MOA-AD and the disbandment of the GRP did not
render the petitions moot and academic. The MOA-AD is subject to further legal enactments
including possible Constitutional amendments more than ever provides impetus for the Court to
formulate controlling principles to guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.
At all events, the Court has jurisdiction over most if not the rest of the petitions. There is a
reasonable expectation that petitioners will again be subjected to the same problem in the future as
respondents' actions are capable of repetition, in another or any form. But with respect to the prayer
of Mandamus to the signing of the MOA-AD, such has become moot and academic considering that
parties have already complied thereat.
On the Substantive Issue
2nd Issue: The SC ruled that the MOA-AD is a matter of public concern, involving as it does the
sovereignty and territorial integrity of the State, which directly affects the lives of the public at large.
As enshrined in the Constitution, the right to information guarantees the right of the people to
demand information, and integrated therein is the recognition of the duty of the officialdom to give
information even if nobody demands. The policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open democracy, with the people's right to
know as the centerpiece. It is a mandate of the State to be accountable by following such policy.
These provisions are vital to the exercise of the freedom of expression and essential to hold public
officials at all times accountable to the people.
Also, it was held that such stipulation in the Constitution is self-executory with reasonable
safeguards the effectivity of which need not await the passing of a statute. Hence, it is essential to
keep open a continuing dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's will.
The idea of a feedback mechanism was also sought for since it is corollary to the twin rights to
information and disclosure. And feedback means not only the conduct of the plebiscite as per the
contention of the respondents. Clearly, what the law states is the right of the petitioners to be
consulted in the peace agenda as corollary to the constitutional right to information and disclosure.
As such, respondent Esperon committed grave abuse of discretion for failing to carry out the furtive
process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise
thereto. Moreover, he cannot invoke of executive privilege because he already waived it when he
complied with the Courts order to the unqualified disclosure of the official copies of the final draft of
the MOA-AD.
In addition, the LGU petitioners has the right to be involved in matters related to such peace talks as
enshrined in the State policy. The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a great number of inhabitants from their
total environment.
With respect to the ICC/IPPs they also have the right to participate fully at all levels on decisions
that would clearly affect their lives, rights and destinies. The MOA-AD is an instrument recognizing
ancestral domain, hence it should have observed the free and prior informed consent to the
ICC/IPPs; but it failed to do so. More specially noted by the court is the excess in authority exercised
by the respondentsince they allowed delineation and recognition of ancestral domain claim by
mere agreement and compromise; such power cannot be found in IPRA or in any law to the effect.
3rd issue: With regard to the provisions of the MOA-AD, there can be no question that they cannot
be all accommodated under the present Constitution and laws. Not only its specific provisions but
the very concept underlying them:
On matters of the Constitution.
Association as the type of relationship governing between the parties. The parties manifested
that in crafting the MOA-AD, the term association was adapted from the international law. In
international law, association happens when two states of equal power voluntarily establish durable
links i.e. the one state, the associate, delegates certain responsibilities to the other, principal, while
maintaining its international status as state; free association is a middle ground between integration
and independence. The MOA-AD contains many provisions that are consistent with the international
definition of association which fairly would deduced that the agreement vest into the BJE a status of
an associated state, or at any rate, a status closely approximating it. The court vehemently objects
because the principle of association is not recognized under the present Constitution.
On the recognition of the BJE entity as a state. The concept implies power beyond
what the Constitution can grant to a local government; even the ARMM do not have
such recognition; and the fact is such concept implies recognition of the associated
entity as a state. There is nothing in the law that contemplate any state within the
jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence. The court
disagrees with the respondent that the MOA-AD merely expands the ARMM. BJE is a
state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population, a defined territory, a government, and a
capacity to enter into relations with other states. As such the MOA-AD clearly runs
counter to the national sovereignty and territorial integrity of the Republic.
On the expansion of the territory of the BJE. The territory included in the BJE includes
those areas who voted in the plebiscite for them to become part of the ARMM. The
stipulation of the respondents in the MOA-AD that these areas need not participate in
the plebiscite is in contrary to the express provision of the Constitution. The law states
that that "[t]he creation of the autonomous region shall be effective when approved by
a majority of the votes cast by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and geographic areas voting favorably in
such plebiscite shall be included in the autonomous region." Clearly, assuming that the
BJE is just an expansion of the ARMM, it would still run afoul the wordings of the law
since those included in its territory are areas which voted in its inclusion to the ARMM
and not to the BJE.
On the powers vested in the BJE as an entity. The respondents contend that the
powers vested to the BJE in the MOA-AD shall be within sub-paragraph 9 of sec 20,
art. 10 of the constitution and that a mere passage of a law is necessary in order to
vest in the BJE powers included in the agreement. The Court was not persuaded. SC
ruled that such conferment calls for amendment of the Constitution; otherwise new
legislation will not concur with the Constitution. Take for instance the treaty making
power vested to the BJE in the MOA-AD. The Constitution is clear that only the
President has the sole organ and is the countrys sole representative with foreign
nation. Should the BJE be granted with the authority to negotiate with other states, the
former provision must be amended consequently. Section 22 must also be
amendedthe provision of the law that promotes national unity and development.
Because clearly, associative arrangement of the MOA-AD does not epitomize national
unity but rather, of semblance of unity. The associative ties between the BJE and the
national government, the act of placing a portion of Philippine territory in a status
which, in international practice, has generally been a preparation for independence, is
certainly not conducive to national unity.
On matters of domestic statutes.
o Provisions contrary to the organic act of ARMM. RA 9054 is a bar to the adoption of the definition
of Bangsamoro people used in the MOA-AD. Said law specifically distinguishes between the
Bangsamoro people and the Tribal peoples that is contrary with the definition of the MOA-AD which
includes all indigenous people of Mindanao.
o Provisions contrary to the IPRA law. Also, the delineation and recognition of the ancestral
domain is a clear departure from the procedure embodied in the IPRA law which ironically is the
term of reference of the MOA-AD.
On matters of international law.
The Philippines adopts the generally accepted principle of international law as part of the law of the
land. In international law, the right to self-determination has long been recognized which states that
people can freely determine their political status and freely pursue their economic, social, and
cultural development. There are the internal and external self-determinationinternal, meaning the
self-pursuit of man and the external which takes the form of the assertion of the right to unilateral
secession. This principle of self-determination is viewed with respect accorded to the territorial
integrity of existing states. External self-determination is only afforded in exceptional cases when
there is an actual block in the meaningful exercise of the right to internal self-determination.
International law, as a general rule, subject only to limited and exceptional cases, recognizes that
the right of disposing national territory is essentially an attribute of the sovereignty of every state.
On matters relative to indigenous people, international law states that indigenous peoples situated
within states do not have a general right to independence or secession from those states under
international law, but they do have rights amounting to what was discussed above as the right to
internal self-determination; have the right to autonomy or self-government in matters relating to their
internal and local affairs, as well as ways and means for financing their autonomous functions; have
the right to the lands, territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Clearly, there is nothing in the law that required the State to guarantee the indigenous people their
own police and security force; but rather, it shall be the State, through police officers, that will
provide for the protection of the people. With regards to the autonomy of the indigenous people, the
law does not obligate States to grant indigenous peoples the near-independent status of a state;
since it would impair the territorial integrity or political unity of sovereign and independent states.
On the basis of the suspensive clause.
o It was contented by the respondents that grave abuse of discretion cannot be had, since the
provisions assailed as unconstitutional shall not take effect until the necessary changes to the legal
framework are effected.
The Court is not persuaded. This suspensive clause runs contrary to Memorandum of Instructions
from the President stating that negotiations shall be conducted in accordance to the territorial
integrity of the countrysuch was negated by the provision on association incorporated in the MOA-
AD. Apart from this, the suspensive clause was also held invalid because of the delegated power to
the GRP Peace panel to advance peace talks even if it will require new legislation or even
constitutional amendments. The legality of the suspensive clause hence hinges on the query
whether the President can exercise such power as delegated by EO No.3 to the GRP Peace Panel.
Well settled is the rule that the President cannot delegate a power that she herself does not
possess. The power of the President to conduct peace negotiations is not explicitly mentioned in the
Constitution but is rather implied from her powers as Chief Executive and Commander-in-chief. As
Chief Executive, the President has the general responsibility to promote public peace, and as
Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless
violence.
As such, the President is given the leeway to explore, in the course of peace negotiations, solutions
that may require changes to the Constitution for their implementation. At all event, the president may
not, of course, unilaterally implement the solutions that she considers viable; but she may not be
prevented from submitting them as recommendations to Congress, which could then, if it is minded,
act upon them pursuant to the legal procedures for constitutional amendment and revision.
While the President does not possess constituent powers - as those powers may be exercised only
by Congress, a Constitutional Convention, or the people through initiative and referendum - she may
submit proposals for constitutional change to Congress in a manner that does not involve the
arrogation of constituent powers. Clearly, the principle may be inferred that the President - in the
course of conducting peace negotiations - may validly consider implementing even those policies
that require changes to the Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body were assumed as a
certainty. The Presidents power is limited only to the preservation and defense of the Constitution
but not changing the same but simply recommending proposed amendments or revisions.
o The Court ruled that the suspensive clause is not a suspensive condition but is a term because it
is not a question of whether the necessary changes to the legal framework will take effect; but,
when. Hence, the stipulation is mandatory for the GRP to effect the changes to the legal framework
which changes would include constitutional amendments. Simply put, the suspensive clause is
inconsistent with the limits of the President's authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must
be struck down as unconstitutional.
On the concept underlying the MOA-AD.
While the MOA-AD would not amount to an international agreement or unilateral declaration binding
on the Philippines under international law, respondents' act of guaranteeing amendments is, by
itself, already a constitutional violation that renders the MOA-AD fatally defective. The MOA-AD not
being a document that can bind the Philippines under international law notwithstanding,
respondents' almost consummated act of guaranteeing amendments to the legal framework is, by
itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they
considered, as a solution to the Moro Problem, the creation of a state within a state, but in their
brazen willingness to guarantee that Congress and the sovereign Filipino people would give their
imprimatur to their solution.Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their
minor children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and
MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as a developed
country, leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While
governmental policies have been geared towards the revitalization of the economy, the bludgeoning
dearth in social services remains to be a problem that concerns not only the poor, but every member
of society. The government continues to tread on a trying path to the realization of its very purpose,
that is, the general welfare of the Filipino people and the development of the country as a whole.
The legislative branch, as the main facet of a representative government, endeavors to enact laws
and policies that aim to remedy looming societal woes, while the executive is closed set to fully
implement these measures and bring concrete and substantial solutions within the reach of Juan
dela Cruz. Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is called upon to
adjudicate. Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its
solemn duty to interpret legislation vis-a-vis the most vital and enduring principle that holds
Philippine society together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control,
abortion and contraception. As in every democratic society, diametrically opposed views on the
subjects and their perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to mass gatherings organized
by members of the clergy4 - the clash between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known
as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by
Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of
society came knocking on the doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting impact that its decision may produce,
the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2)
petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong
and Lovely Ann C. Imbong, in their personal capacities as citizens, lawyers and
taxpayers and on behalf of their minor children; and the Magnificat Child Leaming
Center, Inc., a domestic, privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines,
Inc., through its president, Atty. Maria Concepcion S. Noche 7 and several others8 in
their personal capacities as citizens and on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and
Valeriano S. Avila, in their capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City,
Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned educational institution,
and several others,13 in their capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic
Xybrspace Apostolate of the Philippines,16 in their capacities as a citizens and
taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and taxpayers
(PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their
capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria
Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and
on behalf of those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity
as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation
Inc.24 and several others,25 in their capacities as citizens and taxpayers and on behalf
of its associates who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys.
Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia
Causing, in their capacities as citizens, taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition, 28 filed by John Walter B. Juat and several
others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc.
and several others,31in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M.
Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a
citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an
accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of
RH Law on the following GROUNDS:
The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH Law
would authorize the purchase of hormonal contraceptives, intra-uterine devices and
injectables which are abortives, in violation of Section 12, Article II of the Constitution
which guarantees protection of both the life of the mother and the life of the unborn
from conception.35
The RH Law violates the right to health and the right to protection against hazardous
products. The petitioners posit that the RH Law provides universal access to
contraceptives which are hazardous to one's health, as it causes cancer and other
health problems.36
The RH Law violates the right to religious freedom. The petitioners contend that the
RH Law violates the constitutional guarantee respecting religion as it authorizes the
use of public funds for the procurement of contraceptives. For the petitioners, the use
of public funds for purposes that are believed to be contrary to their beliefs is included
in the constitutional mandate ensuring religious freedom. 37
It is also contended that the RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs
and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be considered as conscientious objectors. 40
It is also argued that the RH Law providing for the formulation of mandatory sex education in
schools should not be allowed as it is an affront to their religious beliefs. 41
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue
that the RH Law fails to satisfy the "clear and present danger test" and the "compelling state interest
test" to justify the regulation of the right to free exercise of religion and the right to free speech. 42
The RH Law violates the constitutional provision on involuntary servitude. According
to the petitioners, the RH Law subjects medical practitioners to involuntary servitude
because, to be accredited under the PhilHealth program, they are compelled to
provide forty-eight (48) hours of pro bona services for indigent women, under threat of
criminal prosecution, imprisonment and other forms of punishment. 43
The petitioners explain that since a majority of patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the public would no longer be able to avail
of the practitioners services.44
The RH Law violates the right to equal protection of the law. It is claimed that the RH
Law discriminates against the poor as it makes them the primary target of the
government program that promotes contraceptive use. The petitioners argue that,
rather than promoting reproductive health among the poor, the RH Law seeks to
introduce contraceptives that would effectively reduce the number of the poor. 45
The RH Law is "void-for-vagueness" in violation of the due process clause of the
Constitution. In imposing the penalty of imprisonment and/or fine for "any violation," it
is vague because it does not define the type of conduct to be treated as "violation" of
the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by
removing from them (the people) the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall offer." 47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in accordance with their
own discretion and judgment.
The RH Law violates the right to free speech. To compel a person to explain a full
range of family planning methods is plainly to curtail his right to expound only his own
preferred way of family planning. The petitioners note that although exemption is
granted to institutions owned and operated by religious groups, they are still forced to
refer their patients to another healthcare facility willing to perform the service or
procedure.48
The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution. It is contended that the RH Law providing for mandatory reproductive
health education intrudes upon their constitutional right to raise their children in
accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall well-being of their family. In the
same breath, it is also claimed that the parents of a child who has suffered a miscarriage are
deprived of parental authority to determine whether their child should use contraceptives. 50
The RH Law violates the constitutional principle of non-delegation of legislative
authority. The petitioners question the delegation by Congress to the FDA of the power
to determine whether a product is non-abortifacient and to be included in the
Emergency Drugs List (EDL).51
The RH Law violates the one subject/one bill rule provision under Section 26( 1 ),
Article VI of the Constitution.52
The RH Law violates Natural Law.53
The RH Law violates the principle of Autonomy of Local Government Units (LGUs)
and the Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH
Law, providing for reproductive health measures at the local government level and the
ARMM, infringes upon the powers devolved to LGUs and the ARMM under the Local
Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective comments-in-intervention
in defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General
(OSG) which commented on the petitions in behalf of the respondents, 55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan,
and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH), 58 Ana
Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-
Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano
was also granted leave to intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which
the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took
effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status
Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed legislation for a
period of one hundred and twenty (120) days, or until July 17, 2013. 62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to
determine and/or identify the pertinent issues raised by the parties and the sequence by which these
issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13,
and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60)
days and, at the same time posed several questions for their clarification on some contentions of the
parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation and
distribution of contraceptive drugs and devices. As far back as June 18, 1966, the country enacted
R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation and distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical
practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to
"dispensing of abortifacients or anti-conceptional substances and devices." Under Section 37
thereof, it was provided that "no drug or chemical product or device capable of provoking abortion or
preventing conception as classified by the Food and Drug Administration shall be delivered or sold
to any person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which
recognized that the population problem should be considered as the principal element for long-term
economic development, enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No. 6365, approved on August
16, 1971, entitled "An Act Establishing a National Policy on Population, Creating the Commission on
Population and for Other Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to couples desiring to space
or limit family size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning a
part of a broad educational program," provided "family planning services as a part of over-all health
care," and made "available all acceptable methods of contraception, except abortion, to all Filipino
citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from
being a component of demographic management, to one centered on the promotion of public health,
particularly, reproductive health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its adherence to the
commitments made in the International Conference on Population and Development. 70 Thus, on
August 14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which,
among others, mandated the State to provide for comprehensive health services and programs for
women, including family planning and sex education. 71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population of
the country reached over 76 million in the year 2000 and over 92 million in 2010.72 The executive
and the legislative, thus, felt that the measures were still not adequate. To rein in the problem, the
RH Law was enacted to provide Filipinos, especially the poor and the marginalized, access and
information to the full range of modem family planning methods, and to ensure that its objective to
provide for the peoples' right to reproductive health be achieved. To make it more effective, the RH
Law made it mandatory for health providers to provide information on the full range of modem family
planning methods, supplies and services, and for schools to provide reproductive health education.
To put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current
laws on contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner
ALFI, in particular, argues that the government sponsored contraception program, the very essence
of the RH Law, violates the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to
the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided
under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives
are prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners
find deplorable and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas
of the country - is made to play in the implementation of the contraception program to the fullest
extent possible using taxpayers' money. The State then will be the funder and provider of all forms
of family planning methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning methods, devices and
supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized
and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the
Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the
controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to
the legislative and political wisdom of Congress and respect the compromises made in the crafting
of the RH Law, it being "a product of a majoritarian democratic process" 75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the discretion to
implement the constitutional policies and positive norms with the political departments, in particular,
with Congress.77 It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are improper
to assail the validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the petitioners, and that the government has yet
to distribute reproductive health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions of the Executive and
the Legislature, it is often sought that the Court temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the basis of the principle of separation of powers.
To be clear, the separation of powers is a fundamental principle in our system of government, which
obtains not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress
of the Philippines;82 (b) the executive power shall be vested in the President of the Philippines; 83 and
(c) the judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes and in bold lines, the
allotment of powers among the three branches of government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers
which imposes upon the courts proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the acts of the Executive or the
Legislature as unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution. 86
It has also long been observed, however, that in times of social disquietude or political instability, the
great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In
order to address this, the Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at the same time, allows it
to cross the line of separation - but only at a very limited and specific point - to determine whether
the acts of the executive and the legislative branches are null because they were undertaken with
grave abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice
or expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be limited,
the Constitution makes no distinction as to the kind of legislation that may be subject to judicial
scrutiny, be it in the form of social legislation or otherwise. The reason is simple and goes back to
the earlier point. The Court may pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective wisdom but, rather, to make sure
that they have acted in consonance with their respective authorities and rights as mandated of them
by the Constitution. If after said review, the Court finds no constitutional violations of any sort, then,
it has no more authority of proscribing the actions under review. 90 This is in line with Article VIII,
Section 1 of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials, as there is no other plain,
speedy or adequate remedy in the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and countless others. In
Tanada, the Court wrote:
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. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and maintenance
of the boundaries of authority and control between them. To him, judicial review is the chief, indeed
the only, medium of participation - or instrument of intervention - of the judiciary in that balancing
operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority
to rule on just any and every claim of constitutional violation. Jurisprudence is replete with the rule
that the power of judicial review is limited by four exacting requisites, viz : (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or
controversy because the RH Law has yet to be implemented. 97 They claim that the questions raised
by the petitions are not yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that judicial review of the RH Law is
premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy must be justiciable-definite
and concrete, touching on the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand,
and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished from an opinion advising what
the law would be upon a hypothetical state of facts. 100
Corollary to the requirement of an actual case or controversy is the requirement of ripeness. 101 A
question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something has 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
himself as a result of the challenged action. He must show that he has sustained or is immediately
in danger of sustaining some direct injury as a result of the act complained of 102
In The Province of North Cotabato v. The Government of the Republic of the Philippines, 103 where
the constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain
(MOA-AD) was put in question, it was argued that the Court has no authority to pass upon the
issues raised as there was yet no concrete act performed that could possibly violate the petitioners'
and the intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act in
question being not yet effective does not negate ripeness. Concrete acts under a law are not
necessary to render the controversy ripe. Even a singular violation of the Constitution and/or the law
is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is
ripe for judicial determination. Considering that the RH Law and its implementing rules have already
taken effect and that budgetary measures to carry out the law have already been passed, it is
evident that the subject petitions present a justiciable controversy. As stated earlier, when an action
of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute. 104
Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech regulating
measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment. 106 These include religious freedom,
freedom of the press, and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.107 After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are but component rights of the right to one's freedom
of expression, as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally
maintained, albeit with some modifications. While this Court has withheld the application of facial
challenges to strictly penal statues,108 it has expanded its scope to cover statutes not only regulating
free speech, but also those involving religious freedom, and other fundamental rights. 109 The
underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court,
under its expanded jurisdiction, is mandated by the Fundamental Law 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.110 Verily, the framers of
Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective petitions. It
contends that the "as applied challenge" lodged by the petitioners cannot prosper as the assailed
law has yet to be enforced and applied against them, 111 and the government has yet to distribute
reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the challenged governmental
act.113 It requires a personal stake in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one
from challenging the constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party
standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest." 116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirement may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency Powers Cases, 118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders although they
had only an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-
applied challenge, still, the Court has time and again acted liberally on the locus s tandi requirement.
It has accorded certain individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of transcendental importance
is invoked. The rule on locus standi is, after all, a procedural technicality which the Court has, on
more than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been directly injured by the operation of a law or any other government act. As held in
Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition for prohibition,
the transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just determination is an imperative need. This is
in accordance with the well-entrenched principle that rules of procedure are not inflexible tools
designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict
and rigid application, which would result in technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the
bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life and health, the freedom of religion
and expression and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a broad spectrum
of society, the Court entertains no doubt that the petitions raise issues of transcendental importance
warranting immediate court adjudication. More importantly, considering that it is the right to life of
the mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken
away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her
child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief
over which the Court has no original jurisdiction.120 Suffice it to state that most of the petitions are
praying for injunctive reliefs and so the Court would just consider them as petitions for prohibition
under Rule 65, over which it has original jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider them as petitions for prohibition under Rule
65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it violates Section
26(1 ), Article VI of the Constitution,122 prescribing the one subject-one title rule. According to them,
being one for reproductive health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act as a population control
measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or population control
measure,124 and that the concepts of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a
population control measure. The corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in
the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A
large portion of the law, however, covers the dissemination of information and provisions on access
to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central idea of the RH Law. 126 Indeed, remove the
provisions that refer to contraception or are related to it and the RH Law loses its very
foundation.127 As earlier explained, "the other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention and management of reproductive
tract infections including HIV/AIDS are already provided for in the Magna Carta for Women." 128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the
title of the enactment language of such precision as to mirror, fully index or catalogue all the
contents and the minute details therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object which the statute seeks to effect, and
where, as here, the persons interested are informed of the nature, scope and consequences of the
proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather than
technical construction of the rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated and germane to the overriding objective to
control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes reproductive health, the right to education
and information, and the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain
that the average person reading it would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any expression or indication of
the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible parenthood" which
bears to the attainment of the goal of achieving "sustainable human development" as stated under
its terms, the Court finds no reason to believe that Congress intentionally sought to deceive the
public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child
under Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion. 130
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH
Law considers contraceptives that prevent the fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization
and prior to implantation, contrary to the intent of the Framers of the Constitution to afford protection
to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows that contraceptives use results in
abortion as they operate to kill the fertilized ovum which already has life. 131
As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the
State sanction of contraceptive use contravenes natural law and is an affront to the dignity of
man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug
Administration (FDA) to certify that the product or supply is not to be used as an abortifacient, the
assailed legislation effectively confirms that abortifacients are not prohibited. Also considering that
the FDA is not the agency that will actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully make a certification that it shall not
be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the
Constitution was simply the prohibition of abortion. They contend that the RH Law does not violate
the Constitution since the said law emphasizes that only "non-abortifacient" reproductive health care
services, methods, devices products and supplies shall be made accessible to the public. 134
According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to
various studies and consultations with the World Health Organization (WHO) and other experts in
the medical field, it is asserted that the Court afford deference and respect to such a determination
and pass judgment only when a particular drug or device is later on determined as an abortive. 135
For his part, respondent Lagman argues that the constitutional protection of one's right to life is not
violated considering that various studies of the WHO show that life begins from the implantation of
the fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the implantation of the fertilized
ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to life. 137
Even if not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is
not of recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966,
prescribing rules on contraceptive drugs and devices which prevent fertilization, 138 to the promotion
of male vasectomy and tubal ligation,139 and the ratification of numerous international agreements,
the country has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through the years, however,
the use of contraceptives and other family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly,
reproductive health.140
This has resulted in the enactment of various measures promoting women's rights and health and
the overall promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna
Carta of Women" were legislated. Notwithstanding this paradigm shift, the Philippine national
population program has always been grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."141 As will be discussed later, these principles are not merely
grounded on administrative policy, but rather, originates from the constitutional protection expressly
provided to afford protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon that the individual members of the
Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of
Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral character shall receive the support of the
Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or when life begins. The problem has
arisen because, amazingly, there are quarters who have conveniently disregarded the scientific fact
that conception is reckoned from fertilization. They are waving the view that life begins at
implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization"
of the female ovum by the male sperm.142 On the other side of the spectrum are those who assert
that conception refers to the "implantation" of the fertilized ovum in the uterus. 143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in their
plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council: 144
One of the primary and basic rules in statutory construction is that where the words of a statute are
clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Verba legis non est recedendum - from the words of a
statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in
which constitutional provisions are couched express the objective sought to be attained; and
second, because the Constitution is not primarily a lawyer's document but essentially that of the
people, in whose consciousness it should ever be present as an important condition for the rule of
law to prevail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation
of a viable zygote; the fertilization that results in a new entity capable of developing into a being like
its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the
female ovum by the male spermatozoon resulting in human life capable of survival and maturation
under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was
written:
Life is not synonymous with civil personality. One need not acquire civil personality first before
he/she could die. Even a child inside the womb already has life. No less than the Constitution
recognizes the life of the unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the
State "has respect for human life at all stages in the pregnancy" and "a legitimate and substantial
interest in preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to,
or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers regarding
the term "conception" used in Section 12, Article II of the Constitution. From their deliberations, it
clearly refers to the moment of "fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception."
When is the moment of conception?
 xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm
150
that there is human life. x x x.
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is
alive. First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous process of cell division. All these processes are
vital signs of life. Therefore, there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from
the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized
ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized
ovum is both alive and human, then, as night follows day, it must be human life. Its nature is
human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the moment of
fertilization" was not because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before
with the scientific phrase "fertilized ovum" may be beyond the comprehension of some people; we
want to use the simpler phrase "from the moment of conception." 152
Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it
was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a
Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's
own admission, he would leave it to Congress to define when life begins. So, Congress can define
life to begin from six months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress, too. 153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of
the questions I was going to raise during the period of interpellations but it has been expressed
already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the
sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the so-
called contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred,
the next process is for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the fertilized ovum to reach
the uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives
should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and,
therefore, would be unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these
certain contraceptives are abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient. 154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn child from the
earliest opportunity of life, that is, upon fertilization or upon the union of the male sperm and the
female ovum. It is also apparent is that the Framers of the Constitution intended that to prohibit
Congress from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading
the need to have a constitutional provision on the right to life, recognized that the determination of
whether a contraceptive device is an abortifacient is a question of fact which should be left to the
courts to decide on based on established evidence. 155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be
deemed an abortive and thus prohibited. Conversely, contraceptives that actually prevent the union
of the male sperm and the female ovum, and those that similarly take action prior to fertilization
should be deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I
would like not only to protect the life of the unborn, but also the lives of the millions of people in the
world by fighting for a nuclear-free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment of conception." I raised
some of these implications this afternoon when I interjected in the interpellation of Commissioner
Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception"
we are also actually saying "no," not "maybe," to certain contraceptives which are already being
encouraged at this point in time. Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no
unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such
as the intra-uterine device which actually stops the egg which has already been fertilized from taking
route to the uterus. So if we say "from the moment of conception," what really occurs is that some of
these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it was conceded that tubal ligation, vasectomy, even
condoms are not classified as abortifacients. 157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing
here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing,
and Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be
the instant a spermatozoon enters an ovum and forms a viable zygote." 159
It describes fertilization as "the union of male and female gametes to form a zygote from which the
embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in
the Philippines, also concludes that human life (human person) begins at the moment of fertilization
with the union of the egg and the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human development begins after
the union of male and female gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with the contact of a sperm
(spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the
haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell.
This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of
a human being."162
The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although
life is a continuous process, fertilization is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is thereby formed.... The combination of
23 chromosomes present in each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed. The embryo now exists as a
genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the
Reproductive Health Bill (Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its
strong position that fertilization is sacred because it is at this stage that conception, and thus human
life, begins. Human lives are sacred from the moment of conception, and that destroying those new
lives is never licit, no matter what the purported good outcome would be. In terms of biology and
human embryology, a human being begins immediately at fertilization and after that, there is no
point along the continuous line of human embryogenesis where only a "potential" human being can
be posited. Any philosophical, legal, or political conclusion cannot escape this objective scientific
fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the life
of a new human being commences at a scientifically well defined "moment of conception." This
conclusion is objective, consistent with the factual evidence, and independent of any specific ethical,
moral, political, or religious view of human life or of human embryos. 164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is
that a zygote is a human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the implantation of the fertilized
ovum is the commencement of conception and it is only after implantation that pregnancy can be
medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does
not pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an
inanimate object - it is a living human being complete with DNA and 46
chromosomes.168 Implantation has been conceptualized only for convenience by those who had
population control in mind. To adopt it would constitute textual infidelity not only to the RH Law but
also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device
that would prevent the implantation of the fetus at the uterine wall. It would be provocative and
further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion.
It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from conception,
explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the Supreme Court. 169
A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion.
While the Court has opted not to make any determination, at this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As
pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the
law to protect to the fertilized ovum and that it should be afforded safe travel to the uterus for
implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal
Code, which penalizes the destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and
supplies that contribute to reproductive health and well-being by addressing reproductive health-
related problems. It also includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and
responsibly whether or not to have children; the number, spacing and timing of their children; to
make other decisions concerning reproduction, free of discrimination, coercion and violence; to have
the information and means to do so; and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive health rights do not include abortion, and
access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential
decree or issuance, executive order, letter of instruction, administrative order, rule or regulation
contrary to or is inconsistent with the provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus
inside the mother's womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with
the Constitution, recognizes that the fertilized ovum already has life and that the State has a
bounden duty to protect it. The conclusion becomes clear because the RH Law, first, prohibits any
drug or device that induces abortion (first kind), which, as discussed exhaustively above, refers to
that which induces the killing or the destruction of the fertilized ovum, and, second, prohibits any
drug or device the fertilized ovum to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean
at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect the fertilized ovum which already has life,
and two, the fertilized ovum must be protected the moment it becomes existent - all the way until it
reaches and implants in the mother's womb. After all, if life is only recognized and afforded
protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or
device from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the
RH Law does not sanction abortion. To repeat, it is the Court's position that life begins at
fertilization, not at implantation. When a fertilized ovum is implanted in the uterine wall , its viability is
sustained but that instance of implantation is not the point of beginning of life. It started earlier. And
as defined by the RH Law, any drug or device that induces abortion, that is, which kills or destroys
the fertilized ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb,
is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said
product and supply is made available on the condition that it is not to be used as an abortifacient" as
empty as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will not
all be used as an abortifacient, since the agency cannot be present in every instance when the
contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the proviso of Section 9, as worded, should bend to
the legislative intent and mean that "any product or supply included or to be included in the EDL
must have a certification from the FDA that said product and supply is made available on the
condition that it cannot be used as abortifacient." Such a construction is consistent with the proviso
under the second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other
forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their
office when they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as
follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning
method, device, or health product, whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the Food and Drug Administration
(FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as
"abortifacient" only those that primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they
pointed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must
be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed
ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid.
There is danger that the insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the RH-IRR, it appears
to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect
is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives
which are actually abortifacients because of their fail-safe mechanism. 174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives
cannot act as abortive. With this, together with the definition of an abortifacient under Section 4 (a)
of the RH Law and its declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be those contraceptives that
do not have the primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but
also those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of
Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have the primary
effect of being an abortive would effectively "open the floodgates to the approval of contraceptives
which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the
National Drug Formulary and the inclusion of the same in the regular purchase of essential
medicines and supplies of all national hospitals.176Citing various studies on the matter, the
petitioners posit that the risk of developing breast and cervical cancer is greatly increased in women
who use oral contraceptives as compared to women who never use them. They point out that the
risk is decreased when the use of contraceptives is discontinued. Further, it is contended that the
use of combined oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk
of myocardial infarction.177 Given the definition of "reproductive health" and "sexual health" under
Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed legislation only
seeks to ensure that women have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it
being a mere statement of the administration's principle and policy. Even if it were self-executory,
the OSG posits that medical authorities refute the claim that contraceptive pose a danger to the
health of women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this regard, the Constitution is
replete with provisions protecting and promoting the right to health. Section 15, Article II of the
Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the
people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social services
available to all the people at affordable cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide
free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and
undertake appropriate health, manpower development, and research, responsive to the country's
health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their rehabilitation,
self-development, and self-reliance, and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard or
hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the
provisions clearly express the contrary, the provisions of the Constitution should be considered self-
executory. There is no need for legislation to implement these self-executing provisions.182 In Manila
Prince Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of the
fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been,
that
... in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine
when, or whether, they shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No.
5921 and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions
of R.A. No. 4729. There is no intention at all to do away with it. It is still a good law and its
requirements are still in to be complied with. Thus, the Court agrees with the observation of
respondent Lagman that the effectivity of the RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and dispensation of contraceptive drugs and devices will
still require the prescription of a licensed physician. With R.A. No. 4729 in place, there exists
adequate safeguards to ensure the public that only contraceptives that are safe are made available
to the public. As aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed
and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts are not inconsistent with
the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are
particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or
otherwise distribute whether for or without consideration, any contraceptive drug or device, unless
such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used
exclusively for the purpose of preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into
the female reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished
with a fine of not more than five hundred pesos or an imprisonment of not less than six months or
more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical,
or drug of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or
otherwise be made available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes,
the pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of
contraceptives, whether harmful or not, is completely unwarranted and baseless. 186 [Emphases in
the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which
provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of family planning supplies for the whole country. The
DOH shall coordinate with all appropriate local government bodies to plan and implement this
procurement and distribution program. The supply and budget allotments shall be based on, among
others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their
children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program
consistent with the overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the
provisions of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will
procure shall be from a duly licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a prescription of a
qualified medical practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life
resulting from or incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available
to the public are safe for public consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the various kinds of contraceptives must
first be measured up to the constitutional yardstick as expounded herein, to be determined as the
case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and non-abortifacient. The first sentence of
Section 9 that ordains their inclusion by the National Drug Formulary in the EDL by using the
mandatory "shall" is to be construed as operative only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has the expertise to determine whether a particular
hormonal contraceptive or intrauterine device is safe and non-abortifacient. The provision of the
third sentence concerning the requirements for the inclusion or removal of a particular family
planning supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-
uterine devices, injectables, and other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by the
constitutional proscription, there are those who, because of their religious education and
background, sincerely believe that contraceptives, whether abortifacient or not, are evil. Some of
these are medical practitioners who essentially claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the transmission of Human
life."188
The petitioners question the State-sponsored procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs. 189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by
making provisions for a conscientious objector, the constitutional guarantee is nonetheless violated
because the law also imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious objector to
cooperate with the very thing he refuses to do without violating his/her religious beliefs. 190
They further argue that even if the conscientious objector's duty to refer is recognized, the
recognition is unduly limited, because although it allows a conscientious objector in Section 23 (a)(3)
the option to refer a patient seeking reproductive health services and information - no escape is
afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to conscientiously
object, such as: a) those working in public health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in Section 23(b ); and c) teachers in public
schools referred to in Section 14 of the RH Law, are also not recognize. 191
Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to
refer the matter to another health care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are required. 192
Petitioner CFC also argues that the requirement for a conscientious objector to refer the person
seeking reproductive health care services to another provider infringes on one's freedom of religion
as it forces the objector to become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of
religious freedom because it mentions no emergency, risk or threat that endangers state interests. It
does not explain how the rights of the people (to equality, non-discrimination of rights, sustainable
human development, health, education, information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the demands of responsible parenthood) are being
threatened or are not being met as to justify the impairment of religious freedom. 194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend
family planning and responsible parenthood seminars and to obtain a certificate of compliance. They
claim that the provision forces individuals to participate in the implementation of the RH Law even if
it contravenes their religious beliefs.195 As the assailed law dangles the threat of penalty of fine
and/or imprisonment in case of non-compliance with its provisions, the petitioners claim that the RH
Law forcing them to provide, support and facilitate access and information to contraception against
their beliefs must be struck down as it runs afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a specific mode
or type of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any
religion or belief.196 They point out that the RH Law only seeks to serve the public interest by
providing accessible, effective and quality reproductive health services to ensure maternal and child
health, in line with the State's duty to bring to reality the social justice health guarantees of the
Constitution,197 and that what the law only prohibits are those acts or practices, which deprive others
of their right to reproductive health.198 They assert that the assailed law only seeks to guarantee
informed choice, which is an assurance that no one will be compelled to violate his religion against
his free will.199
The respondents add that by asserting that only natural family planning should be allowed, the
petitioners are effectively going against the constitutional right to religious freedom, the same right
they invoked to assail the constitutionality of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking that the Court recognize
only the Catholic Church's sanctioned natural family planning methods and impose this on the entire
citizenry.201
With respect to the duty to refer, the respondents insist that the same does not violate the
constitutional guarantee of religious freedom, it being a carefully balanced compromise between the
interests of the religious objector, on one hand, who is allowed to keep silent but is required to refer
-and that of the citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the respondents, the concession
given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely
exercise one's religion without unnecessarily infringing on the rights of others. 202
Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is
limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the required seminars are not
compelled to accept information given to them. They are completely free to reject any information
they do not agree with and retain the freedom to decide on matters of family life without intervention
of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family planning is the
only method acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys
on the matter, they highlight the changing stand of the Catholic Church on contraception throughout
the years and note the general acceptance of the benefits of contraceptives by its followers in
planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people
of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups and is tolerant towards
all - the religious people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present
Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and
humane society, and establish a Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and secure to ourselves and our posterity,
the blessings of independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our
nature and consciousness as a people, shaped by tradition and historical experience. As this is
embodied in the preamble, it means that the State recognizes with respect the influence of religion
in so far as it instills into the mind the purest principles of morality. 205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain benevolent and
accommodating provisions towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not encroach
into the affairs of the church, and vice-versa. The principle of separation of Church and State was,
thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1wphi1 Generally, the State cannot meddle in the internal affairs of the church, much less
question its faith and dogmas or dictate upon it. It cannot favor one religion and discriminate against
another. On the other hand, the church cannot impose its beliefs and convictions on the State and
the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely
believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which refers
to a temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the
State from the pursuit of its secular objectives, the Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the
Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or favoring
any religion as against other religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state religion and the use of public
resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of the
human conscience.207 Under this part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief and faith.208 Explaining the concept
of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union 209 wrote:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the burden may
be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland,
366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes.
They have a single goal-to promote freedom of individual religious beliefs and practices. In simplest
terms, the free exercise clause prohibits government from inhibiting religious beliefs with penalties
for religious beliefs and practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick to
influence individual religious beliefs and practices. 210
Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of
religious freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's imagination and
thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may
believe in most anything, however strange, bizarre and unreasonable the same may appear to
others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between
the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. 212
The second part however, is limited and subject to the awesome power of the State and can be
enjoyed only with proper regard to the rights of others. It is "subject to regulation where the belief is
translated into external acts that affect the public welfare." 213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution." 215 In the same
case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. "The
purpose of accommodation is to remove a burden on, or facilitate the exercise of, a person's or
institution's religion."216 "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts." 217
In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a
fundamental right and that laws burdening it should be subject to strict scrutiny. 219 In Escritor, it was
written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and
present danger" test but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano , German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the " clear and present danger" test in the maiden case
of A merican Bible Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test . Victoriano was the only case
that employed the "compelling state interest" test, but as explained previously, the use of the test
was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which
are outside the province of the civil courts." 220 The jurisdiction of the Court extends only to public
and secular morality. Whatever pronouncement the Court makes in the case at bench should be
understood only in this realm where it has authority. Stated otherwise, while the Court stands
without authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have
authority to determine whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his
religion or defy his religious convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right to
equality and nondiscrimination of these rights, the right to sustainable human development, the right
to health which includes reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of
family planning, including effective natural and modern methods which have been proven medically
safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-based
medical research standards such as those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their
religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's
organizations, civil society, faith-based organizations, the religious sector and communities is crucial
to ensure that reproductive health and population and development policies, plans, and programs
will address the priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a shared responsibility between parents to
determine and achieve the desired number of children, spacing and timing of their children
according to their own family life aspirations, taking into account psychological preparedness, health
status, sociocultural and economic concerns consistent with their religious convictions. [Section 4(v)]
(Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To
some medical practitioners, however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion,
it also limits what religious sects can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use
is contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate
secular objectives without being dictated upon by the policies of any one religion. One cannot refuse
to pay his taxes simply because it will cloud his conscience. The demarcation line between Church
and State demands that one render unto Caesar the things that are Caesar's and unto God the
things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly respects
diverse religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be
reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that
a hospital or a medical practitioner to immediately refer a person seeking health care and services
under the law to another accessible healthcare provider despite their conscientious objections
based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or
practice, the compelling state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector's claim to
religious freedom would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the accomplishment of
an important secular objective. Necessarily so, the plea of conscientious objectors for exemption
from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom
has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into obedience to the law and the abandonment of his
religious beliefs, while the other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious
belief and conviction of a conscientious objector. Once the medical practitioner, against his will,
refers a patient seeking information on modem reproductive health products, services, procedures
and methods, his conscience is immediately burdened as he has been compelled to perform an act
against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the
basis of the free exercise clause is the respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however, a false
compromise because it makes pro-life health providers complicit in the performance of an act that
they find morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot
do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by
indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech,
it being an externalization of one's thought and conscience. This in turn includes the right to be
silent. With the constitutional guarantee of religious freedom follows the protection that should be
afforded to individuals in communicating their beliefs to others as well as the protection for simply
being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and
the liberty not to utter what is not in his mind.223 While the RH Law seeks to provide freedom of
choice through informed consent, freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the
practice of one's religion.224
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand,
and the interest of the State, on the other, to provide access and information on reproductive health
products, services, procedures and methods to enable the people to determine the timing, number
and spacing of the birth of their children, the Court is of the strong view that the religious freedom of
health providers, whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming
to be conscientious objectors under the provisions of Scotland's Abortion Act of 1967, could not be
required to delegate, supervise or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were defined according to whether the
person was taking part 'directly' or ' indirectly' this would actually mean more complexity and
uncertainty."227
While the said case did not cover the act of referral, the applicable principle was the same - they
could not be forced to assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned and
operated by a religious group and health care service providers. Considering that Section 24 of the
RH Law penalizes such institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being violative of
the freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of health care service
providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive
Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour to ensure
compliance. Without set consequences for either an active violation or mere inaction, a law tends to
be toothless and ineffectual. Nonetheless, when what is bartered for an effective implementation of
a law is a constitutionally-protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a patient to another, or
who declines to perform reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs
of hospital, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection
clause should be equally protective of the religious belief of public health officers. There is no
perceptible distinction why they should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all, the freedom to
believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of
human values. The mind must be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or through the media and, thus, seek other
candid views in occasions or gatherings or in more permanent aggrupation. Embraced in such
concept then are freedom of religion, freedom of speech, of the press, assembly and petition, and
freedom of association.229
The discriminatory provision is void not only because no such exception is stated in the RH Law
itself but also because it is violative of the equal protection clause in the Constitution. Quoting
respondent Lagman, if there is any conflict between the RH-IRR and the RH Law, the law must
prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned
RH Law is replete with provisions in upholding the freedom of religion and respecting religious
convictions. Earlier, you affirmed this with qualifications. Now, you have read, I presumed you have
read the IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected
the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it
says: " .... skilled health professionals such as provincial, city or municipal health officers, chief of
hospitals, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be
conscientious objectors, skilled health professionals cannot be considered conscientious objectors.
Do you agree with this? Is this not against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail. 230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense of the
subject provisions, were able to: 1] demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2] discharge the burden of proof
that the obligatory character of the law is the least intrusive means to achieve the objectives of the
law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more compelling state interest that would rationalize the
curbing of a conscientious objector's right not to adhere to an action contrary to his religious
convictions. During the oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in
imposing this duty to refer to a conscientious objector which refuses to do so because of his
religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is
an ordinary health legislation involving professionals. This is not a free speech matter or a pure free
exercise matter. This is a regulation by the State of the relationship between medical doctors and
their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of
the conscientious objectors, however few in number. Only the prevention of an immediate and grave
danger to the security and welfare of the community can justify the infringement of religious
freedom. If the government fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the freedom to act
or not to act according to what one believes. And this freedom is violated when one is compelled to
act against one's belief or is prevented from acting according to one's belief. 233
Apparently, in these cases, there is no immediate danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is contingent on whether or not the
mother decides to adopt or use the information, product, method or supply given to her or whether
she even decides to become pregnant at all. On the other hand, the burden placed upon those who
object to contraceptive use is immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a person's fundamental right to
religious freedom. Also, the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least intrusive means. 234 Other
than the assertion that the act of referring would only be momentary, considering that the act of
referral by a conscientious objector is the very action being contested as violative of religious
freedom, it behooves the respondents to demonstrate that no other means can be undertaken by
the State to achieve its objective without violating the rights of the conscientious objector. The health
concerns of women may still be addressed by other practitioners who may perform reproductive
health-related procedures with open willingness and motivation. Suffice it to say, a person who is
forced to perform an act in utter reluctance deserves the protection of the Court as the last vanguard
of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that the right to
health is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the
Contraceptive Act, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710,
otherwise known as "The Magna Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna Carta on comprehensive health
services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all
times, provide for a comprehensive, culture-sensitive, and gender-responsive health services and
programs covering all stages of a woman's life cycle and which addresses the major causes of
women's mortality and morbidity: Provided, That in the provision for comprehensive health services,
due respect shall be accorded to women's religious convictions, the rights of the spouses to found a
family in accordance with their religious convictions, and the demands of responsible parenthood,
and the right of women to protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address
pregnancy and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family
planning;
(4) Family and State collaboration in youth sexuality education and
health services without prejudice to the primary right and duty of parents
to educate their children;
(5) Prevention and management of reproductive tract infections,
including sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast
and cervical cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related
complications;
(8) In cases of violence against women and children, women and
children victims and survivors shall be provided with comprehensive
health services that include psychosocial, therapeutic, medical, and legal
interventions and assistance towards healing, recovery, and
empowerment;
(9) Prevention and management of infertility and sexual dysfunction
pursuant to ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems
of women and girls. In addition, healthy lifestyle activities are encouraged
and promoted through programs and projects as strategies in the
prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors
with appropriate, timely, complete, and accurate information and education on all the above-stated
aspects of women's health in government education and training programs, with due regard to the
following:
(1) The natural and primary right and duty of parents in the rearing of the
youth and the development of moral character and the right of children to
be brought up in an atmosphere of morality and rectitude for the
enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state
interest was "Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies,
lives changed, x x x." 235 He, however, failed to substantiate this point by concrete facts and figures
from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino
maternal mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH
Law at that time. Despite such revelation, the proponents still insist that such number of maternal
deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for
Filipino women, they could not be solved by a measure that puts an unwarrantable stranglehold on
religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While
generally healthcare service providers cannot be forced to render reproductive health care
procedures if doing it would contravene their religious beliefs, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In these situations, the
right to life of the mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a
mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC,
manifested: "the forced referral clause that we are objecting on grounds of violation of freedom of
religion does not contemplate an emergency." 237
In a conflict situation between the life of the mother and the life of a child, the doctor is morally
obliged always to try to save both lives. If, however, it is impossible, the resulting death to one
should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the
mother of the child is never justified to bring about a "good" effect. In a conflict situation between the
life of the child and the life of the mother, the doctor is morally obliged always to try to save both
lives. However, he can act in favor of one (not necessarily the mother) when it is medically
impossible to save both, provided that no direct harm is intended to the other. If the above principles
are observed, the loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable. 238
Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the
child may be resorted to even if is against the religious sentiments of the medical practitioner. As
quoted above, whatever burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15 239 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even mandate the type of family planning
methods to be included in the seminar, whether they be natural or artificial. As correctly noted by the
OSG, those who receive any information during their attendance in the required seminars are not
compelled to accept the information given to them, are completely free to reject the information they
find unacceptable, and retain the freedom to decide on matters of family life without the intervention
of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of
the Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity
and fosters animosity in the family rather than promote its solidarity and total development. 240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from
all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their
development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of
policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains
provisions which tend to wreck the family as a solid social institution. It bars the husband and/or the
father from participating in the decision making process regarding their common future progeny. It
likewise deprives the parents of their authority over their minor daughter simply because she is
already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal
age on the ground of lack of consent or authorization of the following persons in the following
instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision
of the one undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy
which, by their very nature, should require mutual consent and decision between the husband and
the wife as they affect issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by both spouses. In the same Section
3, their right "to participate in the planning and implementation of policies and programs that affect
them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute
authority to the spouse who would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to protect marriage as an
inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would reach would affect their future as a family
because the size of the family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private right.
Unless it prejudices the State, which has not shown any compelling interest, the State should see to
it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as
the "Magna Carta for Women," provides that women shall have equal rights in all matters relating to
marriage and family relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray
the constitutional mandate to protect and strengthen the family by giving to only one spouse the
absolute authority to decide whether to undergo reproductive health procedure. 242
The right to chart their own destiny together falls within the protected zone of marital privacy and
such state intervention would encroach into the zones of spousal privacy guaranteed by the
Constitution. In our jurisdiction, the right to privacy was first recognized in Marje v. Mutuc, 243 where
the Court, speaking through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection."244 Marje adopted the ruling of the US Supreme Court in Griswold v.
Connecticut,245 where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than
our school system. Marriage is a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the right to privacy
of married persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and substance. Various
guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be
undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law
provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modern methods of family planning
without written consent from their parents or guardian/s except when the minor is already a parent
or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent or
has had a miscarriage, the parents are excluded from the decision making process of the minor with
regard to family planning. Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance
of her own parents. The State cannot replace her natural mother and father when it comes to
providing her needs and comfort. To say that their consent is no longer relevant is clearly anti-
family. It does not promote unity in the family. It is an affront to the constitutional mandate to protect
and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government." 247 In this regard, Commissioner Bernas
wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the
assertion that the right of parents is superior to that of the State. 248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over their
minor-child or the right of the spouses to mutually decide on matters which very well affect the very
purpose of marriage, that is, the establishment of conjugal and family life, would result in the
violation of one's privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of the recognition that the
State affords couples entering into the special contract of marriage to as one unit in forming the
foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the care and
custody of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only
a compelling state interest can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph
of Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be
made. There must be a differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern family planning
methods themselves, on the other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to under the exception
in the second paragraph of Section 7 that would enable her to take proper care of her own body and
that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to enable
a person to make informed decisions is essential in the protection and maintenance of ones' health,
access to such information with respect to reproductive health must be allowed. In this situation, the
fear that parents might be deprived of their parental control is unfounded because they are not
prohibited to exercise parental guidance and control over their minor child and assist her in deciding
whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening cases
that require the performance of emergency procedures. In such cases, the life of the minor who has
already suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack
of consent. It should be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii) 249 should be struck down. By
effectively limiting the requirement of parental consent to "only in elective surgical procedures," it
denies the parents their right of parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the parents should not be deprived of their
constitutional right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the
teaching of Age-and Development-Appropriate Reproductive Health Education under threat of fine
and/or imprisonment violates the principle of academic freedom . According to the petitioners, these
provisions effectively force educational institutions to teach reproductive health education even if
they believe that the same is not suitable to be taught to their students. 250 Citing various studies
conducted in the United States and statistical data gathered in the country, the petitioners aver that
the prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the
aging of society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is
premature because the Department of Education, Culture and Sports has yet to formulate a
curriculum on age-appropriate reproductive health education. One can only speculate on the
content, manner and medium of instruction that will be used to educate the adolescents and
whether they will contradict the religious beliefs of the petitioners and validate their apprehensions.
Thus, considering the premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right
and duty of parents in the rearing of the youth for civic efficiency and development of moral
character shall receive the support of the Government. Like the 1973 Constitution and the 1935
Constitution, the 1987 Constitution affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society. Notably, it places more importance
on the role of parents in the development of their children by recognizing that said role shall be
"primary," that is, that the right of parents in upbringing the youth is superior to that of the State. 252
It is also the inherent right of the State to act as parens patriae to aid parents in the moral
development of the youth. Indeed, the Constitution makes mention of the importance of developing
the youth and their important role in nation building. 253 Considering that Section 14 provides not only
for the age-appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence and teen
pregnancy; physical, social and emotional changes in adolescents; women's rights and children's
rights; responsible teenage behavior; gender and development; and responsible parenthood, and
that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the
teaching of responsible teenage behavior, gender sensitivity and physical and emotional changes
among adolescents - the Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in the moral development of
their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health education
program shall be developed in conjunction with parent-teacher-community associations, school
officials and other interest groups, it could very well be said that it will be in line with the religious
beliefs of the petitioners. By imposing such a condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1) of the Constitution is without merit. 254
While the Court notes the possibility that educators might raise their objection to their participation in
the reproductive health education program provided under Section 14 of the RH Law on the ground
that the same violates their religious beliefs, the Court reserves its judgment should an actual case
be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process
clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private health service
provider" among those who may be held punishable but does not define who is a "private health
care service provider." They argue that confusion further results since Section 7 only makes
reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated
by religious groups from rendering reproductive health service and modern family planning methods.
It is unclear, however, if these institutions are also exempt from giving reproductive health
information under Section 23(a)(l), or from rendering reproductive health procedures under Section
23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.255 Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be interpreted with reference
to the context, that is, every part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment. 256
As correctly noted by the OSG, in determining the definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law which defines a "public health service
provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is duly
licensed and accredited and devoted primarily to the maintenance and operation of facilities for
health promotion, disease prevention, diagnosis, treatment and care of individuals suffering from
illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing
care; (2) public health care professional, who is a doctor of medicine, a nurse or a midvvife; (3)
public health worker engaged in the delivery of health care services; or (4) barangay health worker
who has undergone training programs under any accredited government and NGO and who
voluntarily renders primarily health care services in the community after having been accredited to
function as such by the local health board in accordance with the guidelines promulgated by the
Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law, instead of
"private health care service provider," should not be a cause of confusion for the obvious reason
that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being obligated to
render reproductive health service and modem family planning methods, includes exemption from
being obligated to give reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier discussed, the right to be
exempt from being obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The terms "service" and "methods" are
broad enough to include the providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care service
providers who intentionally withhold, restrict and provide incorrect information regarding
reproductive health programs and services. For ready reference, the assailed provision is hereby
quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or
with established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature
and effect of programs and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical information in accordance with
what is acceptable in medical practice. While health care service providers are not barred from
expressing their own personal opinions regarding the programs and services on reproductive health,
their right must be tempered with the need to provide public health and safety. The public deserves
no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary target of the
government program that promotes contraceptive use . They argue that, rather than promoting
reproductive health among the poor, the RH Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various provisions in the RH Law dealing with
the poor, especially those mentioned in the guiding principles 259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the mandatory reproductive
health education program imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept
of equal protection. Thus:
One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair discrimination offends the requirements
of justice and fair play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." It
"requires public bodies and inst itutions to treat similarly situated individuals in a similar manner."
"The purpose of the equal protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue
or by its improper execution through the state's duly constituted authorities." "In other words, the
concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental
objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights conferred and obligations imposed.
It is not necessary that the classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs from the other
members, as long as that class is substantially distinguishable from all others, does not justify the
non-application of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to
preclude addition to the number included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and conditions. It must not leave out or
"underinclude" those that should otherwise fall into a certain classification. [Emphases supplied;
citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care
program is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article
XIII of the Constitution which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the health development of the
people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social services
available to all the people at affordable cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide
free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction abortion. As Section
3(1) explains, the "promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not
impose conditions upon couples who intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children only if they would raise them in
a truly humane way, a deeper look into its provisions shows that what the law seeks to do is to
simply provide priority to the poor in the implementation of government programs to promote basic
reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory reproductive
health education program under Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational institutions, particularly because
there is a need to recognize the academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service providers to render forty-eight (48) hours
of pro bono reproductive health services, actually amounts to involuntary servitude because it
requires medical practitioners to perform acts against their will. 262
The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers have
the discretion as to the manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation of medical practitioners
with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to control and regulate it in order to protect and
promote the public welfare. Like the legal profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress263 to prescribe the qualifications for the practice of
professions or trades which affect the public welfare, the public health, the public morals, and the
public safety; and to regulate or control such professions or trades, even to the point of revoking
such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion. 265 A reading of the
assailed provision, however, reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono service. Other than non-accreditation
with PhilHealth, no penalty is imposed should they choose to do otherwise. Private and non-
government reproductive healthcare service providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono service
against their will. While the rendering of such service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an unreasonable burden, but rather, a
necessary incentive imposed by Congress in the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs and
convictions do not allow them to render reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to determine
whether or not a supply or product is to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the power but also
the competency to evaluate, register and cover health services and methods. It is the only
government entity empowered to render such services and highly proficient to do so. It should be
understood that health services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the
Food and Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall
be under the Office of the Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and
regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of
this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and
fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as basis
for the issuance of appropriate authorization and spot-check for compliance with
regulations regarding operation of manufacturers, importers, exporters, distributors,
wholesalers, drug outlets, and other establishments and facilities of health products,
as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance
of appropriate authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health products to
report to the FDA any incident that reasonably indicates that said product has caused
or contributed to the death, serious illness or serious injury to a consumer, a patient, or
any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health
products, whether or not registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30) days and may be extended
for sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product
found to have caused death, serious illness or serious injury to a consumer or patient,
or is found to be imminently injurious, unsafe, dangerous, or grossly deceptive, and to
require all concerned to implement the risk management plan which is a requirement
for the issuance of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to
enable the agency to carry out the mandates of the law. Being the country's premiere and sole
agency that ensures the safety of food and medicines available to the public, the FDA was equipped
with the necessary powers and functions to make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure public health and safety by permitting
only food and medicines that are safe includes "service" and "methods." From the declared policy of
the RH Law, it is clear that Congress intended that the public be given only those medicines that are
proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the growing inability of
the legislature to cope directly with the many problems demanding its attention. The growth of
society has ramified its activities and created peculiar and sophisticated problems that the
legislature cannot be expected reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon present day undertakings, the
legislature may not have the competence, let alone the interest and the time, to provide the required
direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs) under Section 17 of the Local Government
Code. Said Section 17 vested upon the LGUs the duties and functions pertaining to the delivery of
basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be self-reliant and shall continue
exercising the powers and discharging the duties and functions currently vested upon
them. They shall also discharge the functions and responsibilities of national agencies
and offices devolved to them pursuant to this Code. Local government units shall
likewise exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient and effective
provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies
on the aspect of providing for basic services and facilities in their respective
jurisdictions, paragraph (c) of the same provision provides a categorical exception of
cases involving nationally-funded projects, facilities, programs and services. 268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by the
National Government under the annual General Appropriations Act, other special laws,
pertinent executive orders, and those wholly or partially funded from foreign sources,
are not covered under this Section, except in those cases where the local government
unit concerned is duly designated as the implementing agency for such projects,
facilities, programs and services. [Emphases supplied]
The essence of this express reservation of power by the national government is that, unless an LGU
is particularly designated as the implementing agency, it has no power over a program for which
funding has been provided by the national government under the annual general appropriations act,
even if the program involves the delivery of basic services within the jurisdiction of the LGU. 269 A
complete relinquishment of central government powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code itself weighs against it. 270
In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of
health care facilities,271 the hiring of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say when it comes to national
priority programs which the local government is called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law which can be construed as making the
availability of these services mandatory for the LGUs. For said reason, it cannot be said that the RH
Law amounts to an undue encroachment by the national government upon the autonomy enjoyed
by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally
applied to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner
Tillah to justify the exemption of the operation of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional government. These provisions relied upon by the
petitioners simply delineate the powers that may be exercised by the regional government, which
can, in no manner, be characterized as an abdication by the State of its power to enact legislation
that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM,
the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium
et imperio in the relationship between the national and the regional governments. 274 Except for the
express and implied limitations imposed on it by the Constitution, Congress cannot be restricted to
exercise its inherent and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law, 276 suffice it to say that the Court
does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is
the Constitution. While every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To
begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere
thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an abstraction, rather than in the
actual law of the past or present.277 Unless, a natural right has been transformed into a written law, it
cannot serve as a basis to strike down a law. In Republic v. Sandiganbayan, 278 the very case cited
by the petitioners, it was explained that the Court is not duty-bound to examine every law or action
and whether it conforms with both the Constitution and natural law. Rather, natural law is to be used
sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is
applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not
allow abortion in any shape or form. It only seeks to enhance the population control program of the
government by providing information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide
access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier pointed out, however, the religious
freedom of some sectors of society cannot be trampled upon in pursuit of what the law hopes to
achieve. After all, the Constitutional safeguard to religious freedom is a recognition that man stands
accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modem society leaves enough
room for diversity and pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it
seeks to address is the problem of rising poverty and unemployment in the country. Let it be said
that the cause of these perennial issues is not the large population but the unequal distribution of
wealth. Even if population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The European
and Asian countries, which embarked on such a program generations ago , are now burdened with
ageing populations. The number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which could have helped
them invigorate, innovate and fuel their economy. These countries are now trying to reverse their
programs, but they are still struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino
Workers. This is because we have an ample supply of young able-bodied workers. What would
happen if the country would be weighed down by an ageing population and the fewer younger
generation would not be able to support them? This would be the situation when our total fertility
rate would go down below the replacement level of two (2) children per woman. 280
Indeed, at the present, the country has a population problem, but the State should not use coercive
measures (like the penal provisions of the RH Law against conscientious objectors) to solve it.
Nonetheless, the policy of the Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the
law is as enacted by the lawmaking body. That is not the same as saying what the law should be or
what is the correct rule in a given set of circumstances. It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the lawmaking body. 281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the
prior existing contraceptive and reproductive health laws, but with coercive measures. Even if the
Court decrees the RH Law as entirely unconstitutional, there will still be the Population Act (R.A. No.
6365), the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The Magna
Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the
same, the principle of "no-abortion" and "non-coercion" in the adoption of any family planning
method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No.
10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions which are
declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require
private health facilities and non-maternity specialty hospitals and hospitals owned and
operated by a religious group to refer patients, not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to another health facility which is
conveniently accessible; and b) allow minor-parents or minors who have suffered a
miscarriage access to modem methods of family planning without written consent from
their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section
5 .24 thereof, insofar as they punish any healthcare service provider who fails and or
refuses to disseminate information regarding programs and services on reproductive
health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they
allow a married individual, not in an emergency or life-threatening case, as defined
under Republic Act No. 8344, to undergo reproductive health procedures without the
consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they
limit the requirement of parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section
5.24 thereof, insofar as they punish any healthcare service provider who fails and/or
refuses to refer a patient not in an emergency or life-threatening case, as defined
under Republic Act No. 8344, to another health care service provider within the same
facility or one which is conveniently accessible regardless of his or her religious
beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5
.24 thereof, insofar as they punish any public officer who refuses to support
reproductive health programs or shall do any act that hinders the full implementation of
a reproductive health program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering
of pro bona reproductive health service in so far as they affect the conscientious
objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
"primarily" in defining abortifacients and contraceptives, as they are ultra vires and,
therefore, null and void for contravening Section 4(a) of the RH Law and violating
Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated
July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been
herein declared as constitutional.
SO ORDERED.
G.R. No. 187883 June 16, 2009
ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO,Petitioners,
versus
SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of
Representatives, Respondents
xx
G.R. No. 187910
LOUIS BAROK C. BIRAOGO, Petitioner
versus
SPEAKER PROSPERO C. NOGRALES, Speaker of the House of Representatives, Congress of
the Philippines, Respondents.
Facts:
The two petitions, filed by their respective petitioners in their capacities as concerned citizens and
taxpayers, prayed for the nullification of House Resolution No. 1109 entitled A Resolution Calling
upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or
Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress, convening the
Congress into a Constituent Assembly to amend the 1987 Constitution. In essence, both petitions
seek to trigger a justiciable controversy that would warrant a definitive interpretation by this Court of
Section 1, Article XVII, which provides for the procedure for amending or revising the Constitution.
The petitioners contend that the House Resolution contradicts the procedures set forth by the 1987
Constitution regarding the amendment or revision of the same as the separate voting of the
members of each House (the Senate and the House of Representatives) is deleted and substituted
with a vote of three-fourths of all the Members of Congress (i.e., of the members of Congress
without distinction as to which institution of Congress they belong to).
Issue:
Whether the court has the power to review the case of the validity of House Resolution No. 1109.
Held:
No. The Supreme Court cannot indulge petitioners supplications. While some may interpret
petitioners moves as vigilance in preserving the rule of law, a careful perusal of their petitions would
reveal that they cannot hurdle the bar of justiciability set by the Court before it will assume
jurisdiction over cases involving constitutional disputes.
The Courts power of review may be awesome, but it is limited to actual cases and controversies
dealing with parties having adversely legal claims, to be exercised after full opportunity of argument
by the parties, and limited further to the constitutional question raised or the very lis mota presented.
The case-or-controversy requirement bans this court from deciding abstract, hypothetical or
contingent questions, lest the court give opinions in the nature of advice concerning legislative or
executive action
An aspect of the case-or-controversy requirement is the requisite of ripeness. In the United
States, courts are centrally concerned with whether a case involves uncertain contingent future
events that may not occur as anticipated, or indeed may not occur at all. Another approach is the
evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and
second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction,
the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is
ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it. An alternative road to review similarly taken would be to determine whether an action
has already been accomplished or performed by a branch of government before the courts may step
in.
In the present case, the fitness of petitioners case for the exercise of judicial review is grossly
lacking. In the first place, petitioners have not sufficiently proven any adverse injury or hardship from
the act complained of. In the second place, House Resolution No. 1109 only resolved that the
House of Representatives shall convene at a future time for the purpose of proposing amendments
or revisions to the Constitution. No actual convention has yet transpired and no rules of procedure
have yet been adopted. More importantly, no proposal has yet been made, and hence, no
usurpation of power or gross abuse of discretion has yet taken place. In short, House Resolution
No. 1109 involves a quintessential example of an uncertain contingent future event that may not
occur as anticipated, or indeed may not occur at all. The House has not yet performed a positive act
that would warrant an intervention from this Court.
As in the case of Tan v. Macapagal, as long as any proposed amendment is still unacted on by it,
there is no room for the interposition of judicial oversight. Only after it has made concrete what it
intends to submit for ratification may the appropriate case be instituted. Until then, the courts are
devoid of jurisdiction
A party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered
some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the
injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the
remedy being sought. In the cases at bar, petitioners have not shown the elemental injury in fact
that would endow them with the standing to sue. Locus standi requires a personal stake in the
outcome of a controversy for significant reasons. It assures adverseness and sharpens the
presentation of issues for the illumination of the Court in resolving difficult constitutional questions.
The lack of petitioners personal stake in this case is no more evident than in Lozanos three-page
petition that is devoid of any legal or jurisprudential basis.
Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the
cases at bar as taxpayers and concerned citizens. A taxpayers suit requires that the act complained
of directly involves the illegal disbursement of public funds derived from taxation. It is undisputed
that there has been no allocation or disbursement of public funds in this case as of yet.
The possible consequence of House Resolution No. 1109 is yet unrealized and does not infuse
petitioners with locus standi
The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from
Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only actual
controversies involving rights which are legally demandable and enforceable.
Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi,
evolving from the stringent requirements of personal injury to the broader transcendental
importance doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant
and the ignoble to file petitions that prove nothing but their cerebral deficit.
IN VIEW WHEREOF, the petitions are dismissed.
G.R. No. 185401 July 21, 2009
HENRY "JUN" DUEAS, JR., Petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ANGELITO "JETT" P.
REYES, Respondents.
DECISION
CORONA, J:
Sed quis custodiet ipsos custodies? (But who is to guard the guardians themselves?) 1
Under our constitutional scheme, the Supreme Court is the ultimate guardian of the Constitution,
particularly of the allocation of powers, the guarantee of individual liberties and the assurance of the
peoples sovereignty.2 The Court has the distinguished but delicate duty of determining and defining
constitutional meaning, divining constitutional intent and deciding constitutional disputes.
Nonetheless, its judicial supremacy is never judicial superiority (for it is co-equal with the other
branches) or judicial tyranny (for it is supposed to be the least dangerous branch). 3 Instead, judicial
supremacy is the conscious and cautious awareness and acceptance of its proper place in the
overall scheme of government with the objective of asserting and promoting the supremacy of the
Constitution. Thus, whenever the Court exercises its function of checking the excesses of any
branch of government, it is also duty-bound to check itself. Otherwise, who will guard the guardian?
The Court should exercise judicial restraint as it resolves the two interesting issues that confront it in
this petition: first, whether the House of Representatives Electoral Tribunal (HRET) committed grave
abuse of discretion when it denied petitioner Henry "Jun" Dueas, Jr.s motion to withdraw or
abandon his remaining 75% counter-protested precincts and second, whether the HRET committed
grave abuse of discretion when it ordered that its own funds be used for the revision of the ballots
from said 75% counter-protested precincts.ten.1ihpwa1
Factual Backdrop
Petitioner Henry "Jun" Dueas, Jr. and private respondent Angelito "Jett" P. Reyes were rival
candidates for the position of congressman in the 2nd legislative district of Taguig City in the May
14, 2007 synchronized national and local elections. After the canvass of the votes, petitioner was
proclaimed the winner, having garnered 28,564 votes 4as opposed to private respondents 27,107
votes.5
Not conceding defeat, private respondent filed an election protest ad cautelam,6 docketed as HRET
Case No. 07-27, in the HRET on June 4, 2007. He prayed for a revision/recount in 170 7 of the 732
precincts in the 2nd legislative district of Taguig City so that the true and real mandate of the
electorate may be ascertained.8 In support of his protest, he alleged that he was cheated in the
protested precincts through insidious and well-orchestrated electoral frauds and anomalies which
resulted in the systematic reduction of his votes and the corresponding increase in petitioners
votes.9
Petitioner filed his answer10 on June 25, 2007. Not to be outdone, he also counter-protested 560
precincts claiming that massive fraud through deliberate misreading, miscounting and
misappreciation of ballots were also committed against him in said precincts resulting in the
reduction of his votes in order to favor private respondent. 11
After the issues were joined, the HRET ordered that all ballot boxes and other election materials
involved in the protest and counter-protest be collected and retrieved, and brought to its offices for
custody.
In the preliminary conference held on July 26, 2007, petitioner and private respondent agreed that,
since the total number of the protested precincts was less than 50% of the total number of the
precincts in the 2nd legislative district of Taguig City, all of the protested precincts would be revised
without need of designation of pilot precints by private respondent pursuant to Rule 88 of the HRET
Rules.12
The HRET thereafter directed the revision of ballots starting September 18, 2007. 13 Reception of
evidence of the contending parties followed after the revision of ballots in 100% of the protested
precincts and 25% pilot of the counter-protested precincts. The case was then submitted for
resolution upon submission by the parties of their memoranda.
In an order dated September 25, 2008, the HRET directed the continuation of the revision and
appreciation of the remaining 75% of the counter-protested precincts pursuant to Rule 88 of the
HRET Rules, "[i]t appearing that the [HRET] cannot determine the true will of the electorate from the
initial revision and appreciation of the 100% protested precincts and 25% counter-protested
precincts and in view of the discovery of fake/spurious ballots in some of the protested and counter-
protested precincts."14
Petitioner moved for reconsideration15 but the HRET denied his motion in an order dated October
21, 2008.16 On the same day, the HRET issued another order directing petitioner to augment his
cash deposit in the amount of 320,000 to cover the expenses of the revision of ballots in the
remaining 75% counter-protested precincts within a non-extendible period of ten days from notice.17
Instead of complying with the order, petitioner filed an urgent motion to withdraw/abandon the
remaining 75% counter-protested precincts on October 27, 2008.18 This was denied by the HRET in
Resolution No. 08-353 dated November 27, 2008, reiterating its order directing the continuation of
the revision of ballots in the remaining 75% counter-protested precincts and recalling its order
requiring petitioner to augment his cash deposit. The Tribunal instead ordered the use of its own
funds for the revision of the remaining 75% counter-protested precincts.19
In issuing Resolution No. 08-353 dated November 27, 2008, the HRET invoked Rule 88 of the
HRET Rules and settled jurisprudence, ruling that it had the discretion either to dismiss the protest
or counter-protest, or to continue with the revision if necessitated by reasonable and sufficient
grounds affecting the validity of the election. This was with the end in view of ascertaining the true
choice of the electorate. It was the HRETs position that the mere filing of a motion to
withdraw/abandon the unrevised precincts did not automatically divest the HRET of its jurisdiction
over the same. Moreover, it ruled that its task of determining the true will of the electorate was not
confined to the examination of contested ballots. Under its plenary power, it could motu
propio review the validity of every ballot involved in a protest or counter-protest and the same could
not be frustrated by the mere expedient of filing a motion to withdraw/abandon the remaining
counter-protested precincts. Convinced that it could not determine the true will of the electorate of
the 2nd legislative district of Taguig City on the basis alone of the initial revision of the 100%
protested precincts and the 25% counter-protested precincts, it had no other recourse but to
continue the revision and appreciation of all the remaining 75% counter-protested precincts.20
Aggrieved by the HRETs Resolution No. 08-353 dated November 27, 2008, petitioner elevated the
matter to this Court.
Central Issue To be Resolved
The core issue for our determination is whether the HRET committed grave abuse of discretion,
amounting to lack or excess of jurisdiction, in issuing Resolution No. 08-353 dated November 27,
2008.
Contentions Of The Parties
Petitioner argues mainly that private respondent as protestant in the election protest at the HRET
had the burden of proving his cause. Failing to do so, the protest should have been dismissed
promptly and not unduly prolonged. For petitioner, the HRETs declaration of its failure to ascertain
the true will of the electorate after the complete revision of all protested precincts demonstrated
private respondents failure to discharge his burden. Thus, the HRET committed grave abuse of
discretion in ordering the continuation of the revision of ballots in the remaining unrevised precincts
as its acts amounted to giving private respondent the undeserved chance to prevail by assisting him
in his search for evidence to support his case. The HRET in effect took the cudgels for him and
thereby compromised its impartiality and independence.
Petitioner also avers that private respondents failure to prove his contentions and his (petitioners)
concomitant exercise of his right to withdraw his counter-protest made the continued revision
irrelevant. He claims that, since a counter-protest is designed to protect and advance the interest of
the protestee, private respondent should not expect to derive any benefit therefrom. This justified
the allowance of the withdrawal of the counter-protest.21
Petitioner also labels as grave abuse of discretion the HRETs assumption of the burden of the costs
of the continued revision. For him, the funds of the HRET should not be used for the benefit of a
private party, specially when its only objective was to speculate whether "the failed protestant can
win."22 Also, the HRETs act amounted to an illegal and unconstitutional disbursement of public
funds which is proscribed under Section 29 (1), 23 Article VI of the Constitution.24
Petitioner adds that the discretion extended to the HRET pursuant to Rule 88 of the HRET Rules
(whether or not to continue with the revision) may be exercised only when the results of the initial
revision show that the same reasonably affected the officially-proclaimed results of the contested
election. However, the HRET never made any determination that the results of the revision showed
private respondent to have made substantial recoveries in support of his cause but simply directed
the continuation of the revision on the premise of its failure to determine the true will of the
electorate as well as in its discovery of fake/spurious ballots. Yet, the total number of alleged
fake/spurious ballots was only 75, or a little over 5% of his 1,457 lead votes; hence, it could not
reasonably be inferred to have affected the officially proclaimed results. Thus, for petitioner, the
fake/spurious ballots could not be made the basis for the continuation of revision of ballots. 25
In his comment,26 private respondent counters that no grave abuse of discretion could be attributed
to the HRET in issuing the assailed resolution. The HRET had every right to order the continuation
of the revision of ballots after its discovery of fake/spurious ballots in favor of petitioner. Its
pronouncement that it could not determine the true will of the electorate centered on this discovery.
Thus, its constitutional mandate dictated that it ferret out the truth by completing the said revision. 27
Private respondent further argues that, under Rule 88 of its Rules, the HRET had the discretion to
either dismiss the counter-protest or continue with the revision based on the outcome of the initial
revision and appreciation proceedings and initial evidence presented by the parties. The mere filing
of a motion to withdraw the protest on the remaining unrevised precincts did not divest the HRET of
its jurisdiction over the electoral protest.28
Furthermore, the HRET could use its available funds to shoulder the cost of revision as this was
merely an incident to its discretion under Rule 88 and of its plenary powers under the Constitution.
To hold otherwise would render its mandated functions meaningless and nugatory.29
For its part, the HRET insists in its comment30 that it did not commit any grave abuse of discretion. It
contends that there was a sufficient and legitimate reason to proceed with the revision of the
remaining 75% counter-protested precincts. The discovery of fake/spurious ballots created serious
doubts about the sanctity of the ballots subject matter of the protest and counter-protest. Thus, the
HRET had no other choice but to open the ballot boxes in the counter-protested precincts and
continue with its revision in order to ascertain and determine the true will of the electorate.
Moreover, its discretion under the HRET Rules gave it the imprimatur to order the continuation of
the revision if, based on its independent evaluation of the results of the initial revision, the same
affected the officially proclaimed results of the contested election. Since the discovery of
fake/spurious ballots, to its mind, had a bearing on the true results of the election, the HRET submits
that it was justified in issuing said order.31
The HRET also points out that the withdrawal of the revision of ballots was not a vested right of any
party but must give way to the higher dictates of public interest, that of determining the true choice
of the people. This determination did not depend on the desire of any party but was vested solely on
the discretion of the HRET as the "sole judge" of all contests relating to the elections, returns and
qualifications of members of the House of Representatives. Moreover, under the HRETs plenary
powers, it could motu proprio review the validity of every ballot involved in a protest or counter-
protest.32
The HRET further claims that petitioner had no reason to worry or to object to its disbursement of its
funds for the continuation of the revision since it had the allotted budget for the same under
paragraph I, (C.1) of RA33 No. 9498,34 or the General Appropriations Act for Fiscal Year 2008. 35
Ruling Of The Court
The petition has no merit.
We base our decision not only on the constitutional authority of the HRET as the "sole judge of all
contests relating to the election, returns and qualifications" 36 of its members but also on the
limitation of the Courts power of judicial review.
The Court itself has delineated the parameters of its power of review in cases involving the HRET
... so long as the Constitution grants the HRET the power to be the sole judge of all contests relating
to the election, returns and qualifications of members of the House of Representatives, any final
action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this
Court . the power granted to the Electoral Tribunal x x x excludes the exercise of any authority on
the part of this Court that would in any wise restrict it or curtail it or even affect the
same.37 (emphasis supplied)
Guided by this basic principle, the Court will neither assume a power that belongs exclusively to the
HRET nor substitute its own judgment for that of the Tribunal.
The acts complained of in this case pertain to the HRETs exercise of its discretion, an exercise
which was well within the bounds of its authority.
Power of HRET to Deny the Motion
To Withdraw/Abandon Counter-Protest
Petitioner submits that there was no point in continuing with the revision of the remaining 75% of the
counter-protested precincts because, notwithstanding the revision of 100% of the protested
precincts and 25% of the counter-protested precincts, petitioners margin over private respondent
was still more than a thousand votes.
Petitioner is wrong.
First, there are 732 precincts in the 2nd Legislative District of Taguig City, where respondent
protested the election results in 170 precincts and petitioner counter-protested 560 precincts.38 All in
all, therefore, 730 precincts were the subject of the revision proceedings. While 100% of the
protested precincts were already revised, only 25% or 140 of the counter-protested precincts (or a
total of 310 precincts) were actually done. Yet, with 420 more precincts to go had the HRET only
been allowed to continue its proceedings, petitioner claims that respondents were only speculating
that a sufficient number of fake/spurious ballots would be discovered in the remaining 75% counter-
protested precincts and that these fake/spurious ballots would overturn the result of the election.
This is ironic because, while petitioner faults the HRET for allegedly engaging in speculation, his
position is itself based on conjectures. He assumes that revising the 420 remaining precincts will not
substantially or significantly affect the original result of the election which will remain the same. As
such, he speculates that, if revised, the 420 remaining precincts will only yield the same or similar
finding as that generated in the 310 precincts already subjected to revision. He presupposes that the
HRET can determine the true will of the electorate even without the 420 or 75% of counter-protested
precincts. (This in fact constitutes 57% of all 730 precincts in the legislative district.)
Petitioner may have assumed too much.
Indeed, due regard and respect for the authority of the HRET as an independent constitutional body
require that any finding of grave abuse of discretion against that body should be based on firm and
convincing proof, not on shaky assumptions. Any accusation of grave abuse of discretion on the part
of the HRET must be established by a clear showing of arbitrariness and improvidence. 39 But the
Court finds no evidence of such grave abuse of discretion by the HRET.
In Co v. HRET,40 we held that:
The Court does not venture into the perilous area of trying to correct perceived errors of
independent branches of the Government. It comes in only when it has to vindicate a denial of due
process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls
for remedial action.41 (emphasis supplied)
Second, the Constitution mandates that the HRET "shall be the sole judge of all contests relating to
the election, returns and qualifications"42 of its members. By employing the word "sole," the
Constitution is emphatic that the jurisdiction of the HRET in the adjudication of election contests
involving its members is exclusive and exhaustive.43Its exercise of power is intended to be its own
full, complete and unimpaired.44
Protective of its jurisdiction and assertive of its constitutional mandate, the Tribunal adopted Rule 7
of the HRET Rules:
RULE 7. Control of Own Functions. The Tribunal shall have exclusive control, direction and
supervision of all matters pertaining to its own functions and operation. (emphasis supplied)
In this connection and in the matter of the revision of ballots, the HRET reserved for itself the
discretion to continue or discontinue the process. Rule 88 of the HRET Rules provides:
RULE 88. Pilot Precincts; Initial Revision. Any provision of these Rules to the contrary
notwithstanding, as soon as the issues in any contest before the Tribunal have been joined, it may
direct and require the protestant and counter-protestant, in case the protest or counter-protest
involves more than 50% of the total number of precincts in the district, to state and designate in
writing within a fixed period at most twenty-five (25%) percent of the total number of precincts
involved in the protest or counter-protest, as the case may be, which said party deems as best
exemplifying or demonstrating the electoral irregularities or frauds pleaded by him; and the revision
of the ballots and/or reception of evidence shall begin with such pilot precincts designated. Upon the
termination of such initial revision and/or reception of evidence, which presentation of evidence
should not exceed ten (10) days, and based upon what reasonably appears therefrom
as affecting or not the officially-proclaimed results of the contested election, the Tribunal may direct
motu propio the continuation of the revision of ballots in the remaining contested precincts, or
dismiss the protest, or the counter-protest, without further proceedings. (emphasis supplied)
The meaning of Rule 88 is plain. The HRET could continue or discontinue the revision proceedings
ex propio motu, that is, of its own accord.45 Thus, even if we were to adopt petitioners view that he
ought to have been allowed by HRET to withdraw his counter-protest, there was nothing to prevent
the HRET from continuing the revision of its own accord by authority of Rule 88.
The only prerequisite to the exercise by the HRET of its prerogative under Rule 88 was its own
determination that the evidence thus far presented could affect the officially proclaimed results.
Much like the appreciation of contested ballots and election documents, the determination of
whether the evidence could influence the officially proclaimed results was a highly technical
undertaking, a function best left to the specialized expertise of the HRET. In Abubakar v.
HRET,46 this Court declined to review the ruling of the HRET on a matter that was discretionary and
technical. The same sense of respect for and deference to the constitutional mandate of the HRET
should now animate the Court in resolving this case.
On this specific point, the HRET held that it "[could] not determine the true will of the electorate from
the [result of the] initial revision and appreciation." 47 It was also "convinced that the revision of the
75% remaining precincts [was] necessary under the circumstances in order to attain the objective
of ascertaining the true intent of the electorate and to remove any doubt as to who between [private
respondent] and [petitioner] obtained the highest number of votes in an election conducted in a fair,
regular and honest manner."48
At the risk of unduly encroaching on the exclusive prerogative of the HRET as the sole judge of
election contests involving its members, the Court cannot substitute its own sense or judgment
for that of the HRET on the issues of whether the evidence presented during the initial
revision could affect the officially proclaimed results and whether the continuation of the
revision proceedings could lead to a determination of the true will of the
electorate. Regrettably, that is what petitioner actually wants the Court to do. But in the exercise of
its checking function, the Court should merely test whether or not the governmental branch or
agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or had a different
view.49
Petitioners position disregards, or at least waters down, Rules 7 and 88 of the HRET Rules. If the
Court will dictate to the HRET on how to proceed with these election protest proceedings, the
Tribunal will no longer have "exclusive control, direction and supervision of all matters pertaining to
its own functions and operation." It will constitute an intrusion into the HRETs domain and a
curtailment of the HRETs power to act of its own accord on its own evaluation of the evidentiary
weight and effect of the result of the initial revision.
Libanan v. HRET50 expressed the Courts recognition of the limitation of its own power vis--vis the
extent of the authority vested by the Constitution on the HRET as sole judge of election contests
involving its members. The Court acknowledged that it could not restrict, diminish or affect the
HRETs authority with respect to the latters exercise of its constitutional mandate. Overturning the
HRETs exercise of its power under Rule 88 will not only emasculate its authority but will also
arrogate unto this Court that bodys purely discretionary function.
Finally, it is hornbook doctrine that jurisdiction, once acquired, is not lost at the instance of the
parties but continues until the case is terminated. 51 Thus, in Robles v. HRET,52 the Court ruled:
The mere filing of the motion to withdraw protest on the remaining uncontested precincts, without
any action on the part of respondent tribunal, does not by itself divest the tribunal of its jurisdiction
over the case. Jurisdiction, once acquired, is not lost upon the instance of the parties but continues
until the case is terminated. We agree with respondent House of Representatives Electoral Tribunal
when it held:
We cannot agree with Protestee's contention that Protestant's 'Motion to Withdraw Protest on
Unrevised Precincts' effectively with drew the precincts referred to therein from the protest even
before the Tribunal has acted thereon. Certainly, the Tribunal retains the authority to grant or deny
the Motion, and the withdrawal becomes effective only when the Motion is granted. To hold
otherwise would permit a party to deprive the Tribunal of jurisdiction already acquired.
We hold therefore that this Tribunal retains the power and the authority to grant or deny Protestant's
Motion to Withdraw, if only to insure that the Tribunal retains sufficient authority to see to it that the
will of the electorate is ascertained.
xxx xxx xxx
Where the court has jurisdiction over the subject matter, its orders upon all questions pertaining to
the cause are orders within its jurisdiction, and however erroneous they may be, they cannot be
corrected by certiorari. This rule more appropriately applies to respondent HRET whose
independence as a constitutional body has time and again been upheld by Us in many cases. As
explained in the case of Lazatin v. The House of Representatives Electoral Tribunal and Timbol,
G.R. No. 84297, December 8, 1988, thus:
The use of the word 'sole' emphasizes the exclusive character of the jurisdiction conferred [Angara
v. Electoral Commission, supra, at 162]. The exercise of the Power by the Electoral Commission
under the 1935 Constitution has been described as `intended to be complete and unimpaired as if it
had remained originally in the legislature' [Id. at 175]. Earlier, this grant of power to the legislature
was characterized by Justice Malcolm as 'full, clear and complete' [Veloso v. Board of Canvassers
of Leyte and Samar, 39 Phil. 886 (1919)]. Under the amended 1935 Constitution, the power was
unqualifiedly reposed upon the Electoral Tribunal [Suanes v. Chief Accountant of the Senate, 81
Phil. 818 (1948)] and it remained as full, clear and complete as that previously granted the
legislature and the Electoral Commission [Lachica v. Yap, G.R. No. L-25379, September 25, 1968,
25 SCRA 140]. The same may be said with regard to the jurisdiction of the Electoral Tribunals under
the 1987 Constitution. Thus, 'judicial review of decisions or final resolutions of the House Electoral
Tribunal is (thus) possible only in the exercise of this Court's so-called extraordinary jurisdiction, . . .
upon a determination that the tribunal's decision or resolution was rendered without or in excess of
its jurisdiction, or with grave abuse of discretion or, paraphrasing Morrera, upon a clear showing of
such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due
process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting
such a GRAVE ABUSE OF DISCRETION that there has to be a remedy for such
abuse.53 (emphasis supplied)
Petitioners argument will in effect deprive the HRET of the jurisdiction it has already acquired. It will
also hold the HRET hostage to the whim or caprice of the parties before it. If the HRET is the
independent body that it truly is and if it is to effectively carry out its constitutional mandate, the
situation urged by petitioner should not be allowed.
Discretion of HRET to Use Its
Own Funds In Revision Proceedings
When jurisdiction is conferred by law on a court or tribunal, that court or tribunal, unless otherwise
provided by law, is deemed to have the authority to employ all writs, processes and other means to
make its power effective.54Where a general power is conferred or duty enjoined, every particular
power necessary for the exercise of one or the performance of the other is also conferred. 55 Since
the HRET possessed the authority to motu propio continue a revision of ballots, it also had the
wherewithal to carry it out. It thus ordered the disbursement of its own funds for the revision of the
ballots in the remaining counter-protested precincts. We hark back to Rule 7 of the HRET Rules
which provides that the HRET has exclusive control, direction and supervision of its functions. The
HRETs order was but one aspect of its power.
Moreover, Rule 8 of the HRET Rules provides:
RULE 8. Express and Implied Powers. The Tribunal shall have and exercise all such powers as
are vested in it by the Constitution or by law, and such other powers as are necessary or incidental
to the accomplishment of its purposes and functions as set forth in the Constitution or as may be
provided by law. (emphasis supplied)
Certainly, the HRETs order that its own funds be used for the revision of the ballots from the 75%
counter-protested precincts was an exercise of a power necessary or incidental to the
accomplishment of its primary function as sole judge of election protest cases involving its
members.
Petitioner contends that, even if the HRET could lawfully order the continuation of the revision, RA
9498 did not authorize the Tribunal to use its own funds for the purpose. This belief is questionable
on three grounds.
First, if petitioner hypothetically admits that the HRET has the power to order the continuation of the
revision of the 75% remaining counter-protested precincts, then he should also necessarily concede
that there is nothing to prevent the HRET from using its own funds to carry out such objective.
Otherwise, the existence of such power on the part of the HRET becomes useless and
meaningless.
Second, petitioner has a very restrictive view of RA 9498. He conveniently fails to mention that
Section 1, Chapter 1 of RA 9498 provides that the HRET has an allotted budget for the "Adjudication
of Electoral Contests Involving Members of the House of Representatives." 56 The provision is
general and encompassing enough to authorize the use of the HRETs funds for the revision of
ballots, whether in a protest or counter-protest. Being allowed by law, the use of HRET funds for the
revision of the remaining 75% counter-protested precincts was not illegal, much less violative of
Article 220 of the Revised Penal Code.
To reiterate, the law (particularly RA 9498) itself has appropriated funds for adjudicating election
contests in the HRET. As an independent constitutional body, and having received the proper
appropriation for that purpose, the HRET had wide discretion in the disbursement and allocation of
such funds.
Third, even assuming that RA 9498 did not expressly authorize the HRET to use its own funds for
the adjudication of a protest or counter-protest, it had the inherent power to suspend its own
rules57 and disburse its funds for any lawful purpose it deemed best. This is specially significant in
election contests such as this where what is at stake is the vital public interest in determining the
true will of the electorate. In any event, nothing prevented the HRET from ordering any of the parties
to make the additional required deposit(s) to cover costs, as respondent in fact manifested in the
HRET.58 Petitioner himself admits in his pleadings that private respondent filed a
Formal Manifestation with the respondent HRET informing respondent HRET that he [was] willing to
make the added cash deposit to shoulder the costs and expenses for the revision of [the] counter-
protested precincts.59
Such disbursement could not be deemed a giving of unwarranted benefit, advantage or preference
to a party since the benefit would actually redound to the electorate whose true will must be
determined. Suffrage is a matter of public, not private, interest. The Court declared in Aruelo, Jr. v.
Court of Appeals60 that "[o]ver and above the desire of the candidates to win, is the deep public
interest to determine the true choice of the people." 61 Thus, in an election protest, any benefit to a
party would simply be incidental.1avvphi1
Moreover, the action of the HRET was permitted by the HRET Rules. Rule 33 of the HRET Rules
provides:
RULE 33. Effect of Failure to Make Cash Deposit. If a party fails to make the cash deposits or
additional cash deposits herein provided within the prescribed time limit, the Tribunal may dismiss
the protest, counter-protest, or petition for quo warranto, or take such action as it may deem
equitable under the premises. (emphasis supplied)
All told, it should be borne in mind that the present petition is a petition for certiorari under Rule 65 of
the Rules of Court. It alleges that the HRET committed grave abuse of discretion amounting to lack
or excess of jurisdiction when it promulgated Resolution No. 08-353 dated November 27, 2008. But
what is "grave abuse of discretion?" It is such capricious and whimsical exercise of judgment which
is tantamount to lack of jurisdiction. Ordinary abuse of discretion is insufficient. The abuse of
discretion must be grave, that is, the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility. It must be so patent and gross as to amount to evasion of
positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of
the law. In other words, for a petition for certiorari to prosper, there must be a clear showing of
caprice and arbitrariness in the exercise of discretion. There is also grave abuse of discretion when
there is a contravention of the Constitution, the law or existing jurisprudence. 62 Using the foregoing
as yardstick, the Court finds that petitioner miserably failed to discharge the onus probandi imposed
on him.
In sum, the supremacy of the Constitution serves as the safety mechanism that will ensure the
faithful performance by this Court of its role as guardian of the fundamental law. Awareness of the
proper scope of its power of judicial review in cases involving the HRET, an independent body with
a specific constitutional mandate, behooves the Court to stay its hands in matters involving the
exercise of discretion by that body, except in clear cases of grave abuse of discretion.
A Final Word
We are not declaring any winner here. We do not have the authority to do so. We are merely
remanding the case to the HRET so that revision proceedings may promptly continue, precisely to
determine the true will of the electorate in the 2nd legislative district of Taguig City for the 2007-2010
congressional term.
Indeed, considering the paramount need to dispel the uncertainty now beclouding the choice of the
electorate and the lifting of the status quo ante order on June 16, 2009, the revision proceedings
shall resume immediately and the electoral case resolved without delay.
WHEREFORE, the petition is hereby DISMISSED and Resolution No. 08-353 dated November 27,
2008 of the House of Representatives Electoral Tribunal AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 200903 July 22, 2014
KALIPUNAN NG DAMAY ANG MAHIBIRAP, INC., represented by its Vice-President, CARLITO
BADION, CORAZON DE JESUS HOMEOWNERS ASSOCIATION, represented by its President,
ARNOLD REPIQUE, FERNANDO SEVILLA as President of Samahang Pamata sa Kapatirang
Kr.istiyano, ESTRELIETA BAGASBAS, JOCY LOPEZ, ELVIRA VIDOL, and DELIA FRA
YRES, Petitioners,
vs.
JESSIE ROBREDO, in his capacity as Secretary, Department of Interior and Local
Government, Hon. GUIA GOMEZ, in her capacity as MAYOR OF THE CITY. OF SAN JUAN,
Hon. HERBERT BAUTISTA, in his capacity as the MAYOR OF QUEZON CITY, Hon. JOHN REY
TIANGCO, in his capacity as MAYOR OF NAVOTAS CITY, and the GENERAL MANAGER of
the NATIONAL HOUSING AUTHORITY, Respondents.
DECISION
BRION, J.:
This is a petition for prohibition and mandamus to enjoin the public respondents from evicting the
individual petitioners as well as the petitionerassociations members from their dwellings in the cities
of San Juan, Navotas and Quezon without any court order, and to compel the respondents to afford
them judicial process prior to evictions and demolitions. The petition primarily seeks to declare
asunconstitutional Section 28 (a) and (b) of Republic Act No. 7279 (RA 7279), otherwise known as
Urban Development Housing Act, which authorizes evictions and demolitions under certain
circumstances without any court order.
The Factual Antecedents
The members of petitioners Kalipunan ng Damayang Mahihirap, Inc. and Corazon de Jesus
Homeowners Association as well as the individual petitioners, Fernando Sevilla, Estrelieta
Bagasbas, Jocy Lopez, Elvira Vidol and Delia Frayres, were/are occupying parcels of land owned by
and located in the cities of San Juan, Navotas and Quezon (collectively, the LGUs1). These LGUs
sent the petitioners notices of eviction and demolition pursuant to Section 28 (a) and (b) of RA 7279
in order to give way to the implementation and construction of infrastructure projects2 in the areas
illegally occupied by the petitioners.3
Section 28 (a) and (b) of RA 7279 authorize evictions and demolitions without any court order when:
(1) persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and other public places suchas sidewalks, roads, parks, and
playgrounds; and (2) persons or entities occupy areas where government infrastructure projects with
available funding are about to be implemented.
The Petition
On March 23, 2012, the petitionersdirectly filed a petition for prohibition and mandamus before the
Court, seeking to compel the Secretary of Interior and Local Government, et al. (the public
respondents)to first secure an eviction and/or demolition order from the court prior to their
implementation of Section 28 (a) and (b) of RA 7279.
The petitioners justify their directrecourse before this Court by generally averring that they have no
plain, speedy and adequate remedy in the ordinary course of law.4 They also posit that the
respondents gravely abused their discretion in implementing Section 28 (a) and (b) of RA 7279
which are patently unconstitutional. They likewise insist that they stand to be directly injured by the
respondentsthreats of evictions and demolitions. In the alternative, they contend that the
transcendental public importance of the issues raised in this case clothes them with legal standing.5
The petitioners argue that Section 28 (a) and (b) of RA 7279 offend their constitutional right to due
process because they warrant evictions and demolitions without any court order. Theypoint out that
Section 6, Article 3 of the 1987 Constitution expressly prohibits the impairment of liberty of abode
unless there is a court order. Moreover, Section 28 (a) and (b) of RA 7279 violate their right to
adequate housing, a universal right recognized in Article 25 of Universal Declaration ofHuman
Rights and Section 2 (a) of RA 7279. The petitioners further complain that the respondents had
previously conducted evictions and demolitions in a violent manner, contrary to Section 10, Article
13 of the 1987 Constitution.6
The Respondents Case
A. The Position of the Mayor of Navotas
The Mayor of Navotas prays for the outright dismissal of the petition for its serious procedural
defects. First, the petitioners ignored the hierarchy of courts when they directly filed a Rule 65
petition before the Court.7 Second, the petitioners incorrectly availed themselves of a petition for
prohibition and mandamus in assailing the constitutionality of Section 28 (a) and (b) of RA 7279.
According to the Mayor of Navotas, the office of a writ of prohibition is merely to prevent the public
respondents usurpation of power or improper assumption of jurisdiction. On the other hand, a writ of
mandamus only commands the public respondent to perform his ministerial functions. Third, the
petitioners failed to particularly state the grave abuse of discretion that the Mayor of Navotas
allegedly committed. Fourth, the petition does not present any justiciable controversy since the City
of Navotas had already successfully evicted the petitioners in San Roque, Navotas on November
28, 2011. Fifth, the petition was filed out of time since the petitioners were personally notified of the
intended eviction and demolition on September 23, 2011. 8
The Mayor argues that Section 10, Article 13 of the 1987 Constitution allows evictions and
demolitions to beconducted even without a court order provided they are done in accordance
withthe law and in a just and humane manner. According to him, RA 7279 isprecisely the law
referred to by Section 10, Article 13 of the 1987 Constitution. The Mayor also disputes the
petitioners claim that RA 7279 does notafford the informal settlers procedural due process prior to
evictions and demolitions. He points out that Section 28 of RA 7279 and its implementing rules and
regulations (IRR) mandate that the affected persons or entities shall be given notice at least thirty
(30) days prior to the date of eviction or demolition. The respondents are likewise required to consult
with the duly designated representatives of the affected families and communities with respect to
their relocation. He further asserts that his faithful implementation of Section 28 (a) and (b) of RA
7279, which are presumed to be constitutional, cannotbe equated to grave abuse of discretion.
Lastly, the Mayor of Navotas insists that the petitioners invocation of their right to freely choose their
abode is misplaced since they have no vested right to occupy properties that they do not own.9
B. The Position of the Mayor of San Juan
The Mayor of San Juan similarly argues that the petitioners improperly availed themselves of a
petition for prohibition and mandamus before the Court. She contends thatshe performed neither
judicial nor ministerial functions in implementing RA 7279, the enabling law of Section 10, Article 13
of the 1987 Constitution. She also maintains that the petition has been rendered moot and academic
by the successful eviction of some of the petitioners in Pinaglabanan, Corazon de Jesus, San Juan.
The Mayor of San Juan further stresses that Section 28 (a) and (b) of RA 7279 already lay down the
procedure in evicting informal settlers in a just and humane manner. 10C. The Position of the Mayor
of Quezon
The Mayor of Quezon City holds that the petitioners premature invocation of the Courts power of
judicial review and their violation of the principle of hierarchy of courts are fatal to their cause of
action. Moreover, the petitioners failed to substantiate the material allegations in the petition. He
additionally argues that his faithful implementation of RA 7279, which the legislature enacted inthe
exercise of police power, does not amount to grave abuse of discretion. 11
D. The Position of the Secretary ofInterior and Local Government
and the General Manager of the National Housing Authority
The Secretary of Interior and Local Government and the National Housing Authority (NHA)General
Manager adopt the Mayor of Navotas position that the petition is procedurally infirm. They further
argue that the liberty of abode is not illimitable and does not include the right to encroach upon other
person properties. They also reiterate that Section 28 of RA 7279 provides sufficient safeguards in
ensuring that evictions and demolitions are carried out in a just and humane manner. 12
The Issues
This case presents to us the following issues:
(1) Whether the petition should be dismissed for serious procedural defects; and
(a) Whether the petitioners violated the principle of hierarchy of courts;
(b) Whether the petitioners correctlyavailed themselves of a petition for
prohibition and mandamus;
(2) Whether Section 28 (a) and (b) of RA 7279 are violative of Sections 1 and 6, Article
3 of the 1987 Constitution.
The Courts Ruling
We dismiss the petition.
The petitioners violated the principle of hierarchy of courts when they directly filed the petition before
the Court.
The petitioners have unduly disregarded the hierarchy of courts by coming directly to the Court
withtheir petition for prohibition and mandamus. The petitioners appear to have forgotten that the
Supreme Court is a court of last resort, not a court offirst instance. The hierarchy of courts should
serve as a general determinant of the appropriate forum for Rule 65 petitions. The concurrence of
jurisdiction among the Supreme Court, Court of Appeals and the Regional Trial Courts to issue writs
of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction does not give the
petitioners the unrestricted freedom of choice of forum. By directly filing Rule 65 petitions before us,
the petitioners have unduly taxed the Courts time and attention which are better devoted to matters
within our exclusive jurisdiction. Worse, the petitioners only contributed to the overcrowding of the
Court's docket. We also wish to emphasize that the trial court is better equipped to resolve cases
ofthis nature since this Court is not a trier of facts and does not normallyundertake an examination
of the contending parties evidence.13
The petitioners wrongly availed themselves of a petition for prohibition and mandamus.
We cannot also ignore the petitioners glaring error in using a petition for prohibition and mandamus
in the current case.
The petitioners seem to have forgotten that a writ of prohibition only lies against the tribunal,
corporation, board, officer or persons exercise of judicial, quasi-judicial or ministerial
functions.14 We issue a writ of prohibition to afford the aggrieved party a relief against the
respondents usurpation or grave abuse of jurisdiction or power. 15
On the other hand, a petition for mandamus is merely directed against the tribunal, corporation,
board, officer, or person who unlawfully neglects the performance of an act which the law enjoins as
a duty resulting from an office, trust or station or who unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled. 16 Thus, a writ of mandamus will only
issue to compel an officer to perform a ministerial duty. It will not control a public officers exercise of
discretion as where the law imposes upon him the duty to exercisehis judgment in reference to any
manner in which he is required to actprecisely because it is his judgment that is to be exercised, not
that of the court.17
In the present case, the petitionersseek to prohibit the respondents from implementing Section 28
(a) and (b) of RA 7279 without a prior court order of eviction and/or demolition. In relation to this,
paragraph 1, Section 28 of RA 7279 provides:
Sec. 28. Eviction and Demolition. Eviction or demolition as a practice shall be discouraged.
Eviction or demolition, however, maybe allowed under the following situations:
(a) When persons or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways, and other public placessuch as
sidewalks, roads, parks, and playgrounds;
(b) When government infrastructure projects with available funding are about to be
implemented;or
(c) When there is a court order for eviction and demolition. (emphasis and underline
ours)
A reading of this provision clearly shows that the acts complained of are beyond the scope of a
petition for prohibition and mandamus. The use of the permissive word "may" implies that the public
respondents have discretion when their duty to execute evictions and/or demolitions shall be
performed. Where the words of a statute are clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation. 18
Consequently, the time when the public respondents shall carry out evictions and/or demolitions
under Section 28 (a), (b), and (c) of RA 7279 is merely discretionary, and not ministerial, judicial or
quasi-judicial. The duty is discretionary if the law imposesa duty upon a public officer and gives him
the right to decide when the duty shall be performed.
In contrast, a ministerial duty is one which an officer or tribunal performs in a given state of facts,in a
prescribedmanner, 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. 19
On the other hand, both judicial and quasi-judicial functions involve the determination of what the
law is, and what the legal rights of the contending parties are, with respect tothe matter in
controversy and, on the basis thereof and the facts obtaining, the adjudication of their respective
rights.20
The resolution of the constitutionality of Section 28 (a) and (b) of RA 7279 is not the lis motaof the
case.
Even if we treat the present petition as one for certiorari since it assails the constitutionality of
Section 28 (a) and (b) of RA 7279, the petition must necessarily fail for failure to show the essential
requisites that would warrant the Courts exercise of judicial review. It is a rule firmly entrenched in
our jurisprudence thatthe courts will not determine the constitutionality of a law unless the following
requisites are present: (1) the existence of an actual case or controversy involving a conflict of legal
rights susceptible of judicial determination; (2) the existence of personal and substantial interest on
the part ofthe party raising the constitutional question; (3) recourse to judicial review is made at the
earliest opportunity; and (4) the resolution of the constitutional question must be necessary to the
decision of the case.21
Save for the petition pertaining to the City of Quezons threat of eviction and demolition, this case no
longer presents a justiciable controversy with respect to the Mayors of Navotas and San Juan. We
take note of the Comments of these Mayors who alleged that they had already successfully evicted
the concerned petitioners in their respective cities at the time of the filing of the petition.
What further constrains this Court from touching on the issue of constitutionality is the fact that this
issue is not the lis mota of this case. Lis motaliterally means "the cause of the suit or action"; it is
rooted in the principle of separation of powers and is thus merely an offshoot of the presumption of
validity accorded the executive and legislative acts of our coequal branches of the government.
This means that the petitioner who claims the unconstitutionality of a law has the burden of showing
first that the case cannot be resolved unless the disposition of the constitutional question that he
raised is unavoidable. If there is some other ground upon which the court may rest its judgment, that
course will be adopted and the question of constitutionality should be avoided. 22 Thus, to justify the
nullification ofa law, there must be a clear and unequivocal breach of the Constitution, and not one
that is doubtful, speculative or argumentative.23
We carefully read the petitions and we conclude that they fail to compellingly show the necessity
ofexamining the constitutionality of Section 28 (a) and (b) of RA 7279 in the light of Sections 1 and
6, Article 3 of the 1987 Constitution.24 In Magkalas v. NHA,25 this Court had already ruled on the
validity of evictions and demolitions without any court order. In that case, we affirmed the validity
ofSection 2 of Presidential Decree No. 1472 which authorizes the NHA to summarily eject all
informal settlers colonies on government resettlement projects as well as any illegal occupant in
any homelot, apartment or dwelling unit owned or administered by the NHA. In that case, we held
that Caridad Magkalas illegal possession of the property should not hinder the NHAs development
of Bagong Barrio Urban Bliss Project. We further stated that demolitions and evictions may be
validly carried out even without a judicial order in the following instances: (1) when the property
involved is an expropriated property xxx pursuant to Section 1 of P.D. No. 1315;
(2) when there are squatters on government resettlement projects and illegal
occupants in any homelot, apartment or dwelling unit owned or administered by the
NHA pursuant to Section 2 of P.D. No. 1472;
(3) when persons or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways and other public places such as
sidewalks, roads, parks and playgrounds, pursuant toSection 28(a) of R.A. No. 7279;
(4) when government infrastructure projects with available funding are about to be
implemented pursuant to Section 28(b) of R.A. No. 7279. 26 (emphasis ours)
We note that Section 10, Article13 of the 1987 Constitution provides that urban or rural poor
dwellers shall not be evicted nor their dwelling demolished, except in accordance withlaw and in a
just and humane manner. Paragraph 1, Section 28 of RA 7279 allows summary evictions and
demolition in cases where persons orentities occupy danger areas and when persons or entities
occupy areas where government infrastructure projects with available funding are about to be
implemented.
To ensure that evictions and demolitions are conducted in a just and humane manner, paragraph 2,
Section 28 of RA 7279 commands the public respondents to comply with the following prescribed
procedure in executing eviction and/or demolition orders:
In the execution of eviction or demolition orders involving underprivileged and homeless citizens, the
following shall be mandatory:
(1) Notice upon the effected persons orentities at least thirty (30) days prior to the date
of eviction or demolition;
(2) Adequate consultations on the matter of settlement with the duly designated
representatives of the families to be resettled and the affected communities in the
areas where they are to be relocated;
(3) Presence of local government officials or their representatives during eviction or
demolition;
(4) Proper identification of all persons taking part in the demolition;
(5) Execution of eviction or demolition only during regular office hours from Mondays
to Fridays and during good weather, unless the affected families consent otherwise;
(6) No use of heavy equipment for demolition except for structures that are permanent
and of concrete materials;
(7) Proper uniforms for members ofthe Philippine National Police who shall occupy the
first line of law enforcement and observe proper disturbance control procedures; and
(8) Adequate relocation, whether temporary or permanent: Provided, however, That in
cases of eviction and demolition pursuant to a court order involving underprivileged
and homeless citizens, relocation shall be undertaken by the local government unit
concerned and the National Housing Authority with the assistance of other government
agencies within forty-five (45) days from service of notice of final judgment by the
court, after which period the said order shall be executed: Provided, further, That
should relocation not be possible within the said period, financial assistance in the
amount equivalent to the prevailing minimum daily wage multiplied by sixty (60) days
shall be extended to the affected families by the local government unit concerned.
This Department of the Interior and Local Government and the Housing and Urban Development
Coordinating Council shall jointly promulgate the necessary rules and regulations to carry out the
above provision.
Lastly, the petitioners failed to substantiate their allegations that the public respondents gravely
abused their discretion in implementing Section 28 (a) and (b) of RA 7279. Instead, theymerely
imputed jurisdictional abuse to the public respondents through general averments in their pleading,
but without any basis to support their claim.
This is precisely the reason why we frown upon the direct filing of Rule 65 petitions before the
Court.1wphi1 To the point of being repetitive, we (xxx source text missing)
Lastly, the petitioners failed to substantiate their allegations that the public respondents gravely
abused their discretion in implementing Section 28 (a) and (b) of RA 7279. Instead, they merely
imputed jurisdictional abuse to the public respondents through general averments in their pleading,
but without any basis to support their claim.
This is precisely the reason why we frown upon the direct filing of Rule 65 petitions before the Court.
To the point of being repetitive, we emphasize that we are not trier of facts and this applies with
greater force to Rule 65 petitions which are original and independent actions. To justify judicial
intrusion into what is fundamentally the domain of the executive department, the petitioners must
establish facts that are necessarily linked to the jurisdictional problem they presented in this case,
i.e., whether the public respondents exercised their power in an arbitrary and despotic manner by
reason of passion or personal hostility in implementing Section 28 (a) and (b) of RA 7279.
Since the petitioners failed to establish that the public respondents' alleged abuse of discretion was
so patent and gross as to amount to an evasion or to a unilateral refusal to perform the duty
enjoined or to act in contemplation of law, this petition must necessarily fail.27
WHEREFORE, premises considered, we hereby DISMISS the petition for its serious procedural
defects. No costs.
SO ORDERED.
G.R. No. 167011 April 30, 2008
SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R. ROMUALDEZ, petitioners,
vs.
COMMISSION ON ELECTIONS and DENNIS GARAY, respondents.
DECISION
CHICO-NAZARIO, J.:
This treats of the Petition for Review on Certiorari with a prayer for the issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction filed by petitioners Spouses Carlos S.
Romualdez and Erlinda R. Romualdez seeking to annul and set aside the Resolutions, dated 11
June 20041 and 27 January 20052 of the Commission on Elections (COMELEC) in E.O. Case No.
2000-36. In the Resolution of 11 June 2004, the COMELEC En Bancdirected the Law Department to
file the appropriate Information with the proper court against petitioners Carlos S. Romualdez and
Erlinda Romualdez for violation of Section 10(g) and (j) 3 in relation to Section 45(j)4 of Republic Act
No. 8189, otherwise known as The Voters Registration Act of 1996.5 Petitioners Motion for
Reconsideration thereon was denied.
The factual antecedents leading to the instant Petition are presented hereunder:
On 12 July 2000, private respondent Dennis Garay, along with Angelino Apostol 6 filed a Complaint-
Affidavit7 with the COMELEC thru the Office of the Election Officer in Burauen, Leyte, charging
petitioners with violation of Section 261(y)(2) 8 and Section 261(y)(5)9 of the Omnibus Election Code,
similarly referred to as Batas Pambansa Blg. 881; and Section 1210 of Republic Act No. 8189.
Private respondent deposed, inter alia, that: petitioners are of legal ages and residents of 113
Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City; on 9 May 2000 and 11
May 2000, petitioners Carlos S. Romualdez and Erlinda R. Romualdez, applied for registration as
new voters with the Office of the Election Officer of Burauen, Leyte, as evidenced by Voter
Registration Record Nos. 42454095 and 07902952, respectively; in their sworn applications,
petitioners made false and untruthful representations in violation of Section 10 11 of Republic Act
Nos. 8189, by indicating therein that they are residents of 935 San Jose Street, Burauen, Leyte,
when in truth and in fact, they were and still are residents of 113 Mariposa Loop, Mariposa Street,
Bagong Lipunan ng Crame, Quezon City, and registered voters of Barangay Bagong Lipunan ng
Crame, District IV, Quezon City, Precinct No. 4419-A, as evidenced by Voter Registration Record
Nos. 26195824 and 26195823; and that petitioners, knowing fully well said truth, intentionally and
willfully, did not fill the blank spaces in said applications corresponding to the length of time which
they have resided in Burauen, Leyte. In fine, private respondent charged petitioners, to wit:
Respondent-spouses, Carlos Sison Romualdez and Erlinda Reyes Romualdez
committed and consummated election offenses in violation of our election laws,
specifically, Sec. 261, paragraph (y), subparagraph (2), for knowingly making any false
or untruthful statements relative to any data or information required in the application
for registration, and of Sec. 261, paragraph (y), subparagraph (5), committed by any
person who, being a registered voter, registers anew without filing an application for
cancellation of his previous registration, both of the Omnibus Election Code (BP Blg.
881), and of Sec. 12, RA 8189 (Voter Registration Act) for failure to apply for transfer
of registration records due to change of residence to another city or municipality." 12
The Complaint-Affidavit contained a prayer that a preliminary investigation be conducted by the
COMELEC, and if the evidence so warrants, the corresponding Information against petitioners be
filed before the Regional Trial Court (RTC) for the prosecution of the same.
Petitioners filed a Joint Counter-Affidavit with Motion to Dismiss13 dated 2 April 2001. They
contended therein that they did not make any false or untruthful statements in their application for
registration. They avowed that they intended to reside in Burauen, Leyte, since the year 1989. On 9
May 2000, they took actual residence in Burauen, Leyte, by leasing for five (5) years, the house of
Juanito and Fe Renomeron at No. 935, San Jose Street in Burauen, Leyte. On even date, the
Barangay District III Council of Burauen passed a Resolution of Welcome, expressing therein its
gratitude and appreciation to petitioner Carlos S. Romualdez for choosing the Barangay as his
official residence.14
On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal, COMELEC Investigating Officer,
issued a Resolution, recommending to the COMELEC Law Department (Investigation and
Prosecution Division), the filing of the appropriate Information against petitioners, disposing, thus:
PREMISES CONSIDERED, the Law Department (Investigation and Prosecution
Division), RECOMMENDS to file the necessary information against Carlos Sison
Romualdez before the proper Regional Trial Court for violation of Section 10 (g) and (j)
in relation to Section 45 (j) of Republic Act 8189 and to authorize the Director IV of the
Law Department to designate a Comelec Prosecutor to handle the prosecution of the
case with the duty to submit periodic report after every hearing of the case. 15
On 11 June 2004, the COMELEC En Banc found no reason to depart from the recommendatory
Resolution of 28 November 2003, and ordered, viz:
WHEREFORE, premises considered, the Law Department is hereby directed to file the
appropriate information with the proper court against respondents CARLOS S.
ROMUALDEZ AND ERLINDA ROMUALDEZ for violation of Section 10 (g) and (j) in
relation to Section 45 (j) of the Republic Act No. 8189. 16
Petitioners filed a Motion for Reconsideration thereon.
Acting on the Motion, the COMELEC found no cogent reason to disturb the assailed En
Banc Resolution of 11 June 2004,17 rationalizing, thus:
However, perusal of the records reveal (sic) that the arguments and issues raised in
the Motion for Reconsideration are merely a rehash of the arguments advanced by the
Respondents in [their] Memorandum received by the Law Department on 17 April
2001, the same [w]as already considered by the Investigating Officer and was
discussed in her recommendation which eventually was made as the basis for the En
Bancs resolution.
As aptly observed by the Investigating Officer, the filing of request for the cancellation
and transfer of Voting Registration Record does not automatically cancel the
registration records. The fact remains that at the time of application for registration as
new voter of the herein Respondents on May 9 and 11, 2001 in the Office of Election
Officer of Burauen, Leyte their registration in Barangay 4419-A, Barangay Bagong
Lipunan ng Crame Quezon City was still valid and subsisting. 18
On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department of the COMELEC filed with the
RTC, Burauen, Leyte, separate Informations against petitioner Carlos S. Romualdez 19 for violation
of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, and against petitioner Erlinda
R. Romualdez20 for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189,
subsequently docketed as Crim. Case No. BN-06-03-4185 and Crim. Case No. BN-06-03-4183,
respectively. Moreover, separate Informations for violation of Section 10(j), in relation to Section
45(j) of Republic Act No. 8189 were filed against petitioners. 21
Hence, petitioners come to us via the instant Petition, submitting the following arguments:
I
RESPONDENT COMMISSION ON ELECTIONS GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF ITS JURISDICTION;
and
II
COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT PREMISED ITS
RESOLUTION ON A MISAPPREHENSION OF FACTS AND FAILED TO CONSIDER
CERTAIN RELEVANT FACTS THAT WOULD JUSTIFY A DIFFERENT
CONCLUSION.22
On 4 May 2006, petitioners filed a Motion Reiterating Prayer for Issuance of Writ of Preliminary
Injunction and to Cite for Indirect Contempt,23 alleging that two separate Informations, both dated 12
January 2006, were filed with the RTC by the COMELEC against petitioner Carlos S. Romualdez for
violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189, in Criminal Case No.
BN-06-03-9184; and for violation of Section 10(g), in relation to Section 45(j) of Republic Act No.
8189, in Criminal Case No. BN-06-03-9185. Similarly, the Motion alleged that the COMELEC filed
with the RTC, two separate Informations, both dated 12 January 2006, against petitioner Erlinda R.
Romualdez, charging her with the same offenses as those charged against petitioner Carlos S.
Romualdez, and thereafter, docketed as Criminal Case No. BN-06-03-9182, and No. BN-06-03-
9183.
On 20 June 2006, this Court issued a Resolution 24 denying for lack of merit petitioners Motion
Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to Cite for Indirect Contempt.
We shall now resolve, in seriatim, the arguments raised by petitioners.
Petitioners contend that the election offenses for which they are charged by private respondent are
entirely different from those which they stand to be accused of before the RTC by the COMELEC.
According to petitioners, private respondents complaint charged them for allegedly violating, to wit:
1) Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code, and 2) Section 12 of the
Voters Registration Act; however, the COMELEC En Bancdirected in the assailed Resolutions, that
they be charged for violations of Section 10(g) and (j), in relation to Section 45(j) of the Voters
Registration Act. Essentially, petitioners are of the view that they were not accorded due process of
law. Specifically, their right to refute or submit documentary evidence against the new charges
which COMELEC ordered to be filed against them. Moreover, petitioners insist that Section 45(j) of
the Voters Registration Act is vague as it does not refer to a definite provision of the law, the
violation of which would constitute an election offense; hence, it runs contrary to Section 14(1) 25 and
Section 14(2),26 Article III of the 1987 Constitution.
We are not persuaded.
First. The Complaint-Affidavit filed by private respondent with the COMELEC is couched in a
language which embraces the allegations necessary to support the charge for violation of Section
10(g) and (j), in relation to Section 45(j) of Republic Act No. 8189.
A reading of the relevant laws is in order, thus:
Section 10(g) and Section 10(j) of Republic Act No. 8189, provide as follows:
SEC. 10 Registration of Voters. - A qualified voter shall be registered in the
permanent list of voters in a precinct of the city or municipality wherein he resides to
be able to vote in any election. To register as a voter, he shall personally accomplish
an application form for registration as prescribed by the Commission in three (3)
copies before the Election Officer on any date during office hours after having acquired
the qualifications of a voter.
The application shall contain the following data:
xxxx
(g) Periods of residence in the Philippines and in the place of registration;
xxxx
(j) A statement that the application is not a registered voter of any precinct;
The application for registration shall contain three (3) specimen signatures of the
applicant, clear and legible rolled prints of his left and right thumbprints, with four
identification size copies of his latest photograph, attached thereto, to be taken at the
expense of the Commission.
Before the applicant accomplishes his application for registration, the Election Officer
shall inform him of the qualifications and disqualifications prescribed by law for a voter,
and thereafter, see to it that the accomplished application contains all the data therein
required and that the applicants specimen signatures, fingerprints, and photographs
are properly affixed in all copies of the voters application.
Moreover, Section 45(j) of the same Act, recites, thus:
SEC. 45. Election Offense. The following shall be considered election offenses
under this Act:
xxxx
(j) Violation of any of the provisions of this Act.
Significantly, the allegations in the Complaint-Affidavit which was filed with the Law Department of
the COMELEC, support the charge directed by the COMELEC En Banc to be filed against
petitioners with the RTC. Even a mere perusal of the Complaint-Affidavit would readily show that
Section 10 of Republic Act No. 8189 was specifically mentioned therein. On the matter of the acts
covered by Section 10(g) and (j), the Complaint-Affidavit, spells out the following allegations, to wit:
5. Respondent-spouses made false and untruthful representations in their applications
(Annexes "B" and "C") in violation of the requirements of Section 10, RA 8189 (The
Voters Registration Act):
5.1 Respondent-spouses, in their sworn applications (Annexes "B" and
"C", claimed to be residents of 935 San Jose [S]treet, Burauen, Leyte,
when in truth and in fact, they were and still are residents of 113
Mariposa Loop, Mariposa [S]treet, Bagong Lipunan ng Crame, Quezon
City and registered voters of Barangay Bagong Lipunan ng Crame,
District IV, Quezon City, Precinct No. 4419-A, a copy of the Certification
issued by Hon. Emmanuel V. Gozon, Punong Barangay, Bagong
Lipunan ng Crame, Quezon City is hereto attached and made an integral
part hereof, as Annex "D";
5.2 Respondent-spouses knowing fully well said truth, intentionally and
willfully, did not fill the blank spaces in their applications (Annexes "B"
and "C") corresponding to the length of time they have resided in
Burauen, Leyte;
6. Respondent-spouses, in (sic) all intents and purposes, were and still are residents
and registered voters of Quezon City, as evidenced by Voter Registration Record Nos.
26195824 and 26195823, respectively; photocopies of which are hereto attached as
Annexes "E" and "F"[.] Likewise, attached is a "Certification" (Annex "G") of Ms. Evelyn
B. Bautista, Officer-in-Charge of the Office of the Election Officer, Fourth District,
Quezon City, dated May 31, 2000, together with a certified copy of the computer print-
out of the list of voters of Precinct No. 4419-A (Annex "G-1" ) containing the names of
voters Carlos Romualdez and Erlinda Reyes Romualdez. The Certification reads as
follows:
"THIS IS TO CERTIFY that as per office record MR. CARLOS
ROMUALDEZ and MS. ERLINDA REYES ROMUALDEZ are registered
voters of Barangay Bagong Lipunan ng Crame, District IV, Quezon City,
Precinct Number 4419A with voters affidavit serial nos. 26195824 and
26195823, respectively.
This certification is issued for whatever legal purpose it may serve."
7. Respondent-spouses, registered as new voters of the Municipality of Burauen,
Leyte, [in spite of] the fact that they were and still are, registered voters of Quezon City
as early as June 22, 1997;
7.1 That, Double Registration is an election offense.
A person qualified as a voter is only allowed to register once.
If a person registers anew as a voter in spite of a subsisting registration,
the new application for registration will be disapproved. The registrant is
also liable not only for an election offense of double registration, but also
for another election offense of knowingly making any false or untruthful
statement relative to any data or information required in the application
for registration.
In fact, when a person applies for registration as a voter, he or she fills
up a Voter Registration Record form in his or her own handwriting, which
contains a Certification which reads:
"I do solemnly swear that the above statements regarding my person are
true and correct; that I possess all the qualifications and none of the
disqualifications of a voter; that the thumbprints, specimen signatures
and photographs appearing herein are mine; and that I am not registered
as a voter in any other precinct."27
Petitioners cannot be said to have been denied due process on the claim that the election offenses
charged against them by private respondent are entirely different from those for which they stand to
be accused of before the RTC, as charged by the COMELEC. In the first place, there appears to be
no incongruity between the charges as contained in the Complaint-Affidavit and the Informations
filed before the RTC, notwithstanding the denomination by private respondent of the alleged
violations to be covered by Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code
and Section 12 of Republic Act No. 8189. Evidently, the Informations directed to be filed by the
COMELEC against petitioners, and which were, in fact, filed with the RTC, were based on the same
set of facts as originally alleged in the private respondents Complaint-Affidavit.
Petitioners buttress their claim of lack of due process by relying on the case of Lacson v. Executive
Secretary.28Citing Lacson, petitioners argue that the real nature of the criminal charge is determined
by the actual recital of facts in the Complaint or Information; and that the object of such written
accusations was to furnish the accused with such a description of the charge against him, as will
enable him to make his defense. Let it be said that, in Lacson, this court resolved the issue of
whether under the allegations in the subject Informations therein, it is the Sandiganbayan or the
Regional Trial Court which has jurisdiction over the multiple murder case against therein petitioner
and intervenors. In Lacson, we underscored the elementary rule that the jurisdiction of a court is
determined by the allegations in the Complaint or Information, and not by the evidence presented by
the parties at the trial.29 Indeed, in Lacson, we articulated that the real nature of the criminal charge
is determined not from the caption or preamble of the Information nor from the specification of the
provision of law alleged to have been violated, they being conclusions of law, but by the actual
recital of facts in the Complaint or Information.30
Petitioners reliance on Lacson, however, does not support their claim of lack of due process
because, as we have said, the charges contained in private respondents Complaint-Affidavit and
the charges as directed by the COMELEC to be filed are based on the same set of facts. In fact, the
nature of the criminal charges in private respondents Complaint-Affidavit and that of the charges
contained in the Informations filed with the RTC, pursuant to the COMELEC Resolution En Banc are
the same, such that, petitioners cannot claim that they were not able to refute or submit
documentary evidence against the charges that the COMELEC filed with the RTC. Petitioners were
afforded due process because they were granted the opportunity to refute the allegations in private
respondents Complaint-Affidavit. On 2 April 2001, in opposition to the Complaint-Affidavit,
petitioners filed a Joint Counter-Affidavit with Motion to Dismiss with the Law Department of the
COMELEC. They similarly filed a Memorandum before the said body. Finding that due process was
not dispensed with under the circumstances in the case at bar, we agree with the stance of the
Office of the Solicitor General that petitioners were reasonably apprised of the nature and
description of the charges against them. It likewise bears stressing that preliminary investigations
were conducted whereby petitioners were informed of the complaint and of the evidence submitted
against them. They were given the opportunity to adduce controverting evidence for their defense.
In all these stages, petitioners actively participated.
The instant case calls to our minds Orquinaza v. People,31 wherein the concerned police officer
therein designated the offense charged as sexual harassment; but, the prosecutor found that there
was no transgression of the anti-sexual harassment law, and instead, filed an Information charging
therein petitioner with acts of lasciviousness. On a claim that there was deprivation of due process,
therein petitioner argued that the Information for acts of lasciviousness was void as the preliminary
investigation conducted was for sexual harassment. The court held that the designation by the
police officer of the offense is not conclusive as it is within the competence of the prosecutor to
assess the evidence submitted and determine therefrom the appropriate offense to be charged.
Accordingly, the court pronounced that the complaint contained all the allegations to support the
charge of acts of lasciviousness under the Revised Penal Code; hence, the conduct of another
preliminary investigation for the offense of acts of lasciviousness would be a futile exercise because
the complainant would only be presenting the same facts and evidence which have already been
studied by the prosecutor.32 The court frowns upon such superfluity which only serves to delay the
prosecution and disposition of the criminal complaint. 33
Second. Petitioners would have this court declare Section 45(j) of Republic Act No. 8189 vague, on
the ground that it contravenes the fair notice requirement of the 1987 Constitution, in particular,
Section 14(1) and Section 14(2), Article III of thereof. Petitioners submit that Section 45(j) of
Republic Act No. 8189 makes no reference to a definite provision of the law, the violation of which
would constitute an election offense.
We are not convinced.
The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its application. 34 However, this Court has
imposed certain limitations by which a criminal statute, as in the challenged law at bar, may be
scrutinized. This Court has declared that facial invalidation 35 or an "on-its-face" invalidation of
criminal statutes is not appropriate.36 We have so enunciated in no uncertain terms in Romualdez v.
Sandiganbayan, 37 thus:
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With respect to such statute, the
established rule is that 'one to whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might be
unconstitutional.' As has been pointed out, 'vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial invalidation,
while statutes found vague as a matter of due process typically are invalidated [only]
'as applied' to a particular defendant.'" (underscoring supplied)
"To this date, the Court has not declared any penal law unconstitutional on the ground
of ambiguity." While mentioned in passing in some cases, the void-for-vagueness
concept has yet to find direct application in our jurisdiction. In Yu Cong Eng v.
Trinidad, the Bookkeeping Act was found unconstitutional because it violated the equal
protection clause, not because it was vague. Adiong v. Comelec decreed as void a
mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec held that a
portion of RA 6735 was unconstitutional because of undue delegation of legislative
powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass
acquittal of parties whose cases may not have even reached the courts. Such
invalidation would constitute a departure from the usual requirement of "actual
case and controversy" and permit decisions to be made in a sterile abstract
context having no factual concreteness. In Younger v. Harris, this evil was aptly
pointed out by the U.S. Supreme Court in these words:
"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all
the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided."
For this reason, generally disfavored is an on-its-face invalidation of statutes,
described as a "manifestly strong medicine" to be employed "sparingly and only
as a last resort." In determining the constitutionality of a statute, therefore, its
provisions that have allegedly been violated must be examined in the light of the
conduct with which the defendant has been charged. (Emphasis supplied.)
At the outset, we declare that under these terms, the opinions of the dissent which seek to bring to
the fore the purported ambiguities of a long list of provisions in Republic Act No. 8189 can be
deemed as a facial challenge. An appropriate "as applied" challenge in the instant Petition should be
limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189the
provisions upon which petitioners are charged. An expanded examination of the law covering
provisions which are alien to petitioners case would be antagonistic to the rudiment that for judicial
review to be exercised, there must be an existing case or controversy that is appropriate or ripe for
determination, and not conjectural or anticipatory.
We further quote the relevant ruling in David v. Arroyo on the proscription anent a facial challenge:38
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
"reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and
rebellion are considered "harmful" and "constitutionally unprotected conduct."
In Broadrick v. Oklahoma, it was held:
It remains a matter of no little difficulty to determine when a law may properly be held
void on its face and when such summary action is inappropriate. But the plain import
of our cases is, at the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one
at the outset, attenuates as the otherwise unprotected behavior that it forbids
the State to sanction moves from pure speech toward conduct and that conduct
even if expressive falls within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only "spoken words" and again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct." Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum
of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to
be used "sparingly and only as a last resort," and is "generally disfavored;" The
reason for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. A writer
and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects of
the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties; and
the court invalidates the entire statute "on its face," not merely "as applied for" so that
the overbroad law becomes unenforceable until a properly authorized court construes
it more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad
statute on third parties not courageous enough to bring suit. The Court assumes that
an overbroad laws "very existence may cause others not before the court to refrain
from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court
to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction that its very existence
may cause others not before the Court to refrain from constitutionally protected
speech or expression.
Xxx xxx xxx
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can be
 no instance when the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This,
too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds
that "a law is facially invalid if men of common intelligence must necessarily
guess at its meaning and differ as to its application." It is subject to the same
principles governing overbreadth doctrine. For one, it is also an analytical tool for
testing "on their faces" statutes in free speech cases. And like overbreadth, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible
applications.
Be that as it may, the test in determining whether a criminal statute is void for uncertainty is whether
the language conveys a sufficiently definite warning as to the proscribed conduct when measured by
common understanding and practice.39 This Court has similarly stressed that the vagueness
doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute
precision or mathematical exactitude.40
As structured, Section 4541 of Republic Act No. 8189 makes a recital of election offenses under the
same Act. Section 45(j) is, without doubt, crystal in its specification that a violation of any of the
provisions of Republic Act No. 8189 is an election offense. The language of Section 45(j) is precise.
The challenged provision renders itself to no other interpretation. A reading of the challenged
provision involves no guesswork. We do not see herein an uncertainty that makes the same vague.
Notably, herein petitioners do not cite a word in the challenged provision, the import or meaning of
which they do not understand. This is in stark contrast to the case of Estrada v.
Sandiganbayan42 where therein petitioner sought for statutory definition of particular words in the
challenged statute. Even then, the Court in Estrada rejected the argument.
This Court reasoned:
The rationalization seems to us to be pure sophistry. A statute is not rendered
uncertain and void merely because general terms are used therein, or because
of the employment of terms without defining them; much less do we have to
define every word we use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define each and every word in an
enactment.Congress is not restricted in the form of expression of its will, and its
inability to so define the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear, or at least,
can be gathered from the whole act, which is distinctly expressed in the Plunder Law."
Moreover, it is a well-settled principle of legal hermeneutics that words of a
statute will be interpreted in their natural, plain and ordinary acceptation and
signification, unless it is evident that the legislature intended a technical or
special legal meaning to those words. The intention of the lawmakers who are,
ordinarily, untrained philologists and lexicographers to use statutory phraseology in
such a manner is always presumed.
Perforce, this Court has underlined that an act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions, especially where, because of the
nature of the act, it would be impossible to provide all the details in advance as in all other
statutes.43
The evident intent of the legislature in including in the catena of election offenses the violation of any
of the provisions of Republic Act No. 8189, is to subsume as punishable, not only the commission of
proscribed acts, but also the omission of acts enjoined to be observed. On this score, the declared
policy of Republic Act No. 8189 is illuminating. The law articulates the policy of the State to
systematize the present method of registration in order to establish a clean, complete, permanent
and updated list of voters. A reading of Section 45 (j) conjointly with the provisions upon which
petitioners are charged, i.e., Sections 10 (g) and (j) would reveal that the matters that are required to
be set forth under the aforesaid sections are crucial to the achievement of a clean, complete,
permanent and updated list of voters. The factual information required by the law is sought not for
mere embellishment.
There is a definitive governmental purpose when the law requires that such facts should be set forth
in the application. The periods of residence in the Philippines and in the place of registration delve
into the matter of residency, a requisite which a voter must satisfy to be deemed a qualified voter
and registered in the permanent list of voters in a precinct of the city or municipality wherein he
resides. Of even rationality exists in the case of the requirement in Section 10 (j), mandating that the
applicant should state that he/she is not a registered voter of any precinct. Multiple voting by so-
called flying voters are glaring anomalies which this country strives to defeat. The requirement that
such facts as required by Section 10 (g) and Section 10 (j) be stated in the voters application form
for registration is directly relevant to the right of suffrage, which the State has the right to regulate.
It is the opportune time to allude to the case of People v. Gatchalian44 where the therein assailed
law contains a similar provision as herein assailed before us. Republic Act No. 602 also penalizes
any person who willfully violates any of the provisions of the Act. The Court dismissed the
challenged, and declared the provision constitutional. The Court in Gatchalian read the challenged
provision, "any of the provisions of this [A]ct" conjointly with Section 3 thereof which was the
pertinent portion of the law upon which therein accused was prosecuted. Gatchalian considered the
terms as all-embracing; hence, the same must include what is enjoined in Section 3 thereof which
embodies the very fundamental purpose for which the law has been adopted. This Court ruled that
the law by legislative fiat intends to punish not only those expressly declared unlawful but even
those not so declared but are clearly enjoined to be observed to carry out the fundamental purpose
of the law.45 Gatchalian remains good law, and stands unchallenged.
It also does not escape the mind of this Court that the phraseology in Section 45(j) is employed by
Congress in a number of our laws.46 These provisions have not been declared unconstitutional.
Moreover, every statute has in its favor the presumption of validity.47 To justify its nullification, there
must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative
or argumentative.48 We hold that petitioners failed to overcome the heavy presumption in favor of
the law. Its constitutionality must be upheld in the absence of substantial grounds for overthrowing
the same.
A salient point. Courts will refrain from touching upon the issue of constitutionality unless it is truly
unavoidable and is the very lis mota. In the case at bar, the lis mota is the alleged grave abuse of
discretion of the COMELEC in finding probable cause for the filing of criminal charges against
petitioners.
Third. Petitioners maintain that the COMELEC En Banc, premised its finding on a misapprehension
of facts, and committed grave abuse of discretion in directing the filing of Informations against them
with the RTC.
We are once again unimpressed.
The constitutional grant of prosecutorial power in the COMELEC finds statutory expression under
Section 26549 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code. 50 The
task of the COMELEC whenever any election offense charge is filed before it is to conduct the
preliminary investigation of the case, and make a determination of probable cause. Under Section
8(b), Rule 34 of the COMELEC Rules of Procedure, the investigating officer makes a determination
of whether there is a reasonable ground to believe that a crime has been committed. 51 In Baytan v.
COMELEC,52 this Court, sufficiently elucidated on the matter of probable cause in the prosecution of
election offenses, viz:
It is also well-settled that the finding of probable cause in the prosecution of election
offenses rests in the COMELEC's sound discretion. The COMELEC exercises the
constitutional authority to investigate and, where appropriate, prosecute cases for
violation of election laws, including acts or omissions constituting election frauds,
offense and malpractices. Generally, the Court will not interfere with such finding of the
COMELEC absent a clear showing of grave abuse of discretion. This principle
emanates from the COMELEC's exclusive power to conduct preliminary investigation
of all election offenses punishable under the election laws and to prosecute the same,
except as may otherwise be provided by law.53
It is succinct that courts will not substitute the finding of probable cause by the COMELEC in
the absence of grave abuse of discretion. The abuse of discretion must be so patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility.54
According to the COMELEC En Banc, the investigating officer, in the case at bar, held that there
was sufficient cause for the filing of criminal charges against petitioners, and found no reason to
depart therefrom. Without question, on May 9 and 11 of 2001, petitioners applied for registration as
new voters with the Office of the Election Officer of Burauen, Leyte, notwithstanding the existence of
petitioners registration records as registered voters of Precinct No. 4419-A of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City. The directive by the COMELEC which affirmed the
Resolution55 of 28 November 2000 of Investigating Officer Atty. Tangaro-Casingal does not appear
to be wanting in factual basis, such that a reasonably prudent man would conclude that there exists
probable cause to hold petitioners for trial. Thus, in the aforesaid Resolution, the Investigating
Officer, found:
A violation therefore of Section 10 of Republic Act No. 8189 is an election offense.
In the instant case, when respondents Carlos Romualdez and Erlinda Romualdez filed
their respective applications for registration as new voters with the Office of the
Election Officer of Burauen, Leyte on May 9 and 11, 2001, respectively, they stated
under oath that they are not registered voters in other precinct (VRR Nos. 42454095
and 07902941). However, contrary to their statements, records show they are still
registered voters of Precinct No. 4419-A, barangay Bagong Lipunan ng Crame, District
IV, Quezon City, as per VRR Nos. 26195825 and 26195823. In other words,
respondents registration records in Quezon City is (sic) still in existence.
While it may be true that respondents had written the City Election Officer of District
IV, Quezon City for cancellation of their voters registration record as voters (sic)
therein, they cannot presume that the same will be favorably acted upon. Besides, RA
8189 provides for the procedure in cases of transfer of residence to another
city/municipality which must be complied with, to wit:
"Section 12. Change of Residence to Another City or Municipality. Any registered
voter who has transferred residence to another city or municipality may apply with the
Election Officer of his new residence for the transfer of his registration records.
The application for transfer of registration shall be subject to the requirements of notice
and hearing and the approval of the Election Registration Board, in accordance with
this Act. Upon approval, of the application for transfer, and after notice of such
approval to the Election Officer of their former residence of the voter, said Election
Officer shall transmit by registered mail the voters registration record to the Election
Officer of the voters new residence."
They cannot claim ignorance of the abovestated provision on the procedure for
transfer of registration records by reason of transferred new residence to another
municipality. Based on the affidavit executed by one Eufemia S. Cotoner, she alleged
that the refusal of the Assistant Election Officer Ms. Estrella Perez to accept the letter
of respondents was due to improper procedure because respondents should have filed
the required request for transfer with the Election Officer of Burauen, Leyte. Despite
this knowledge, however, they proceeded to register as new voters of Burauen, Leyte,
notwithstanding the existence of their previous registrations in Quezon City.
In their subsequent affidavit of Transfer of Voters Registration under Section 12 of
Republic Act 8189, respondents admitted that they erroneously filed an application as
a new voter (sic) with the office of the Election Officer of Burauen, Leyte, by reason of
an honest mistake, which they now desire to correct. (underscoring ours).
Respondents lose sight of the fact that a statutory offense, such as violation of election
law, is mala prohibita. Proof of criminal intent is not necessary. Good faith, ignorance
or lack of malice is beside the point. Commission of the act is sufficient. It is the act
itself that is punished.
xxxx
In view of the foregoing, the Law Department respectfully submits that there is
probable cause to hold respondents Carlos Romualdez and Erlinda Romualdez for
trial in violation of Section 10(g) and (j) in relation to Section 45(j) of Republic Act No.
8189. There is no doubt that they applied for registration as new voters of Burauen,
Leyte consciously, freely and voluntarily.56
We take occasion to reiterate that the Constitution grants to the COMELEC the power to prosecute
cases or violations of election laws. Article IX (C), Section 2 (6) of the 1987 Constitution, provides:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion
or exclusion of voters; investigate and where appropriate, prosecute cases or
violations of election laws, including acts or omissions constituting election frauds,
offenses, and malpractices.
This power to prosecute necessarily involves the power to determine who shall be prosecuted, and
the corollary right to decide whom not to prosecute. 57 Evidently, must this power to prosecute also
include the right to determine under which laws prosecution will be pursued. The courts cannot
dictate the prosecution nor usurp its discretionary powers. As a rule, courts cannot interfere with the
prosecutors discretion and control of the criminal prosecution.58Its rationale cannot be doubted. For
the business of a court of justice is to be an impartial tribunal, and not to get involved with the
success or failure of the prosecution to prosecute. 59 Every now and then, the prosecution may err in
the selection of its strategies, but such errors are not for neutral courts to rectify, any more than
courts should correct the blunders of the defense. 60
Fourth. In People v. Delgado,61 this Court said that when the COMELEC, through its duly authorized
law officer, conducts the preliminary investigation of an election offense and upon a prima
facie finding of a probable cause, files the Information in the proper court, said court thereby
acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case must
be subject to the approval of the court. The records show that Informations charging petitioners with
violation of Section 10(g) and (j), in relation to Section 45(j) of Republic Act No. 8189 had been filed
with the RTC. The case must, thus, be allowed to take its due course.
It may be recalled that petitioners prayed for the issuance of a Temporary Restraining Order or Writ
of Preliminary Injunction before this Court to restrain the COMELEC from executing its Resolutions
of 11 June 2004 and 27 January 2005. In a Resolution dated 20 June 2006, this Court En
Banc denied for lack of merit petitioners Motion Reiterating Prayer for Issuance of Writ of
Preliminary Injunction and to Cite for Indirect Contempt. Logically, the normal course of trial is
expected to have continued in the proceedings a quo.
WHEREFORE, the Petition is DENIED. The assailed Resolutions, dated 11 June 2004 and 27
January 2005 of the COMELEC En Banc are AFFIRMED. Costs against petitioners.
SO ORDERED.
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L. ROQUE,
JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO
BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength the use of force cannot make wrongs into rights. In this regard,
the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: "In cases
involving liberty, the scales of justice should weigh heavily against government and in favor
of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws and
actions that restrict fundamental rights come to the courts "with a heavy presumption against their
constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent
officials of the Government, in their professed efforts to defend and preserve democratic institutions,
are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence,
such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon
me by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . .
whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists the historical enemies of the democratic Philippine
State who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State by obstructing governance
including hindering the growth of the economy and sabotaging the peoples confidence in
government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of
the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State and
who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the peoples confidence in the
government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of
the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do
hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and after
all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021
which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued
on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to
undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military officers,
leftist insurgents of the New Peoples Army (NPA), and some members of the political opposition in
a plot to unseat or assassinate President Arroyo.4 They considered the aim to oust or assassinate
the President and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to
the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners
counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While
he explained that it is not respondents task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement,
they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show
and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going
to the streets in protest, but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming
in Baguio City. The plot was to assassinate selected targets including some cabinet members and
President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to attend
the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National Peoples Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive documents. 7 Prior to his arrest, Lt.
San Juan announced through DZRH that the "Magdalos D-Day would be on February 24, 2006, the
20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the
PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed
and issued a public statement: "All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos
brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo
critic, called a U.S. government official about his groups plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of
the Armys elite Scout Ranger. Lim said "it was all systems go for the planned movement against
Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga,
Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would
join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held
on February 24, 2005. According to these two (2) officers, there was no way they could possibly
stop the soldiers because they too, were breaking the chain of command to join the forces foist to
unseat the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and
to the chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to
return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military
and the police establishments in order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and revolutionary
movement and the entire people look forward to the possibility in the coming year of accomplishing
its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule
that it will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers and
enlisted personnel who undertake counter-insurgency operations in the field." He claimed that with
the forces of the national democratic movement, the anti-Arroyo conservative political parties,
coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the
Presidents ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell sites in
Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017
and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass
protests.10
By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the
AFP and the PNP to account for all their men and ensure that the chain of command remains solid
and undivided. To protect the young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and activities
related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the Presidents mind were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and
take-over of facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups
of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-
Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention
of converging at the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber
glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter
the massed participants. The same police action was used against the protesters marching forward
to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo
de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal
of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf
S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested
was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation
and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while policemen from the
Manila Police District were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a strong
presence, to tell media outlets not to connive or do anything that would help the rebels in bringing
down this government." The PNP warned that it would take over any media organization that would
not follow "standards set by the government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards and the standards are - if they
would contribute to instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend a takeover." National Telecommunications
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government
for the duration of the state of national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage when the national security is threatened. 14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltrans lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could
not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained,
while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a
public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were
taken into custody.
Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested
while with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casio and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao
City. Later, he was turned over to the custody of the House of Representatives where the "Batasan
5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency
has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5
were filed with this Court against the above-named respondents. Three (3) of these petitions
impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged
the CIDGs act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint."
They also claimed that the term "emergency" refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty
one (21) other members of the House of Representatives, including Representatives Satur Ocampo,
Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017 and
G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in
calling out the armed forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and
G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact
laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O.
No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and
418 of Article III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary
and unlawful exercise by the President of her Martial Law powers." And assuming that PP 1017 is
not really a declaration of Martial Law, petitioners argued that "it amounts to an exercise by the
President of emergency powers without congressional approval." In addition, petitioners asserted
that PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5
are "unconstitutional for being violative of the freedom of expression, including its cognate rights
such as freedom of the press and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal
standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate
the peoples right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.), and 171424 (Legarda)
have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple
foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate
and preserve inviolate the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts
may exercise such power only when the following requisites are present: first, there must be an
actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible
of judicial resolution. It is "definite and concrete, touching the legal relations of parties having
adverse legal interest;" a real and substantial controversy admitting of specific relief. 25 The Solicitor
General refutes the existence of such actual case or controversy, contending that the present
petitions were rendered "moot and academic" by President Arroyos issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,26so that a declaration thereon would be of no practical use or
value.27 Generally, courts decline jurisdiction over such case28 or dismiss it on ground of
mootness.29
The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that
must be resolved in the present petitions. It must be stressed that "an unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution;31second, the exceptional character of the situation and the
paramount public interest is involved;32 third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; 33and fourth, the case is capable of
repetition yet evading review.34
All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over
the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the
Constitution. There is no question that the issues being raised affect the publics interest, involving
as they do the peoples basic rights to freedom of expression, of assembly and of the press.
Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the
present petitions, the military and the police, on the extent of the protection given by constitutional
guarantees.35 And lastly, respondents contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio
V. Panganibans Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to
take into account the Chief Justices very statement that an otherwise "moot" case may still be
decided "provided the party raising it in a proper case has been and/or continues to be prejudiced or
damaged as a direct result of its issuance." The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it imperative to
have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given question." 37 In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in
interest" is "the party who stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit."38 Succinctly put, the plaintiffs standing is based on his
own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He could
be suing as a "stranger," or in the category of a "citizen," or taxpayer." In either case, he has to
adequately show that he is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of relief as a "citizen" or
"taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a
taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:40 "In matter of mere public right, howeverthe people are the real partiesIt is at
least the right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayers suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that
for a private individual to invoke the judicial power to determine the validity of an executive or
legislative action, he must show that he has sustained a direct injury as a result of that action,
and it is not sufficient that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in
the case such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate,45 Manila Race Horse Trainers Association v. De la Fuente,46 Pascual v. Secretary of Public
Works47 and Anti-Chinese League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of the cases prompted the
Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this
Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings. 51
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury,
they have been allowed to sue under the principle of "transcendental importance." Pertinent are
the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement
of the constitutional right to information and the equitable diffusion of natural
resources are matters of transcendental importance which clothe the petitioner
with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given
the transcendental importance of the issues involved, the Court may relax the
standing requirements and allow the suit to prosper despite the lack of direct
injury to the parties seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file
suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the
exercise of Congress taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may
be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:
(1) 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.
Significantly, recent decisions show a certain toughening in the Courts attitude toward legal
standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a peoples
organization does not give it the requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a
taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court
reiterated the "direct injury" test with respect to concerned citizens cases involving constitutional
issues. It held that "there must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the Presidents declaration of a state of
rebellion is a usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt.
The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing
Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal
standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of
Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine
Amusement and Gaming Corporation,63 and Taada v. Tuvera,64 that when the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the
laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial notice of the announcement by
the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which
the IBP as an institution or its members may suffer as a consequence of the issuance of PP No.
1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, 66 the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly
true, is not sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the transcendental importance
of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as
there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator
is of no consequence. She can no longer sue as a legislator on the allegation that her prerogatives
as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not
sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may relax the standing
rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this
very critical matter. The petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017
cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that
the President, during his tenure of office or actual incumbency, 67 may not be sued in any civil or
criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the
dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and important
duties imposed upon him by the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to anyone. Like any other official,
he remains accountable to the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment. 69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President
Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the Presidents exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v.
Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government." 75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation of powers, it shifted
the focus to the system of checks and balances, "under which the President is supreme, x x
x only if and when he acts within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly
divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable
question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there
is a need to re-examine the latter case, ratiocinating that "in times of war or national emergency,
the President must be given absolute control for the very life of the nation and the
government is in great peril. The President, it intoned, is answerable only to his conscience,
the People, and God."79
The Integrated Bar of the Philippines v. Zamora 80 -- a recent case most pertinent to these cases at
bar -- echoed a principle similar to Lansang. While the Court considered the Presidents "calling-out"
power as a discretionary power solely vested in his wisdom, it stressed that "this does not prevent
an examination of whether such power was exercised within permissible constitutional limits
or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is
mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which fortifies
the authority of the courts to determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are authorized not only "to settle
actual controversies involving rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." The
latter part of the authority represents a broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion of the political departments of the
government.81 It speaks of judicial prerogative not only in terms of power but also of duty.82
As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test
that "judicial inquiry can go no further than to satisfy the Court not that the Presidents decision
is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the Presidents decision is totally bereft of
factual basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot
undertake an independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP
1017, is totally bereft of factual basis. A reading of the Solicitor Generals Consolidated Comment
and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group,
their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented nothing to refute such events.
Thus, absent any contrary allegations, the Court is convinced that the President was justified in
issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold
her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times of emergency. A
glimpse at the various political theories relating to this subject provides an adequate backdrop for
our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act
according to discretion for the public good, without the proscription of the law and
sometimes even against it."84 But Locke recognized that this moral restraint might not suffice to
avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative
and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the
people have no other remedy in this, as in all other cases where they have no judge on earth,
but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes
of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may,
in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of
the State
It is wrong therefore to wish to make political institutions as strong as to render it impossible to
suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation,
the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a
moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear
that the peoples first intention is that the State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely
upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed duration to
avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship."88
Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra constitutional
measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little while be disregarded under that
pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying it. 89
Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem of combining a capacious
reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of response to emergency
by constitutional democracies, have employed the doctrine of constitutional dictatorship. 91 Frederick
M. Watkins saw "no reason why absolutism should not be used as a means for the defense of
liberal institutions," provided it "serves to protect established institutions from the danger of
permanent injury in a period of temporary emergency and is followed by a prompt return to
the previous forms of political life."92 He recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional governance: increasing administrative
powers of the executive, while at the same time "imposing limitation upon that
power."93Watkins placed his real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: "The period of dictatorship must be relatively
shortDictatorship should always be strictly legitimate in characterFinal authority to
determine the need for dictatorship in any given case must never rest with the dictator
himself"94 and the objective of such an emergency dictatorship should be "strict political
conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of
concentrating power in a government where power has consciously been divided to cope with
situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject
to equally strong limitations as to who shall exercise such powers, when, for how long, and to what
end."96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency
powers, to wit: "The emergency executive must be appointed by constitutional means i.e.,
he must be legitimate; he should not enjoy power to determine the existence of an
emergency; emergency powers should be exercised under a strict time limitation; and last,
the objective of emergency action must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of
"constitutional dictatorship" as solution to the vexing problems presented by emergency. 98 Like
Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship,"
thus:
1) No general regime or particular institution of constitutional dictatorship should be
initiated unless it is necessary or even indispensable to the preservation of the State
and its constitutional order
2) the decision to institute a constitutional dictatorship should never be in the hands
of the man or men who will constitute the dictator
3) No government should initiate a constitutional dictatorship without making specific
provisions for its termination
 4) all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements
5) no dictatorial institution should be adopted, no right invaded, no regular
procedure altered any more than is absolutely necessary for the conquest of the
particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should
never be permanent in character or effect
7) The dictatorship should be carried on by persons representative of every part of the
citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a
constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute
one should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for
which it was instituted
11) the termination of the crisis must be followed by a complete return as possible to
the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship99
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were
one in saying that, "the suggestion that democracies surrender the control of government to
an authoritarian ruler in time of grave danger to the nation is not based upon sound
constitutional theory." To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not whether the term "dictator"
is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief
executives administering emergency powers. However used, "constitutional dictatorship" cannot be
divorced from the implication of suspension of the processes of constitutionalism. Thus, they
favored instead the "concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of emergency
powers, and which is consistent with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon
the substantive powers of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose adequate power in
government. And in discussing the meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling of
government by an exaggerated emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism have consisted not in
the weakening of government but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with "limited" as distinguished
from "weak" government, McIlwain meant government limited to the orderly procedure of law
as opposed to the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary
power and a complete political responsibility of government to the governed.101
In the final analysis, the various approaches to emergency of the above political theorists - from
Locks "theory of prerogative," to Watkins doctrine of "constitutional dictatorship" and, eventually, to
McIlwains "principle of constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime,
the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a
government in the concept of Justice Jacksons "balanced power structure." 102 Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the monopoly of power in
times of emergency. Each branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the
same time, it obliges him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,104the US Supreme Court held that "we have not
recognized an overbreadth doctrine outside the limited context of the First Amendment"
(freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:
It remains a matter of no little difficulty to determine when a law may properly be held void on its
face and when such summary action is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from pure speech toward
conduct and that conduct even if expressive falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms,
seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are sought to be
applied to protected conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to
a spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used
"sparingly and only as a last resort," and is "generally disfavored;"107 The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that
a person to whom a law may be applied will not be heard to challenge a law on the ground that it
may conceivably be applied unconstitutionally to others, i.e., in other situations not before the
Court.108 A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve
away the unconstitutional aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis, those rules
give way; challenges are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect
of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes
that an overbroad laws "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to examine
PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but
on the assumption or prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of
these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the speculative and amorphous nature
of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever way they might be
decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed
law may be valid. Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and
differ as to its application."110 It is subject to the same principles governing overbreadth doctrine.
For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. And
like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all
its possible applications. Again, petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."
First Provision: Calling-out Power
The first provision pertains to the Presidents calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-
eight hours from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to
the least benign, these are: the calling-out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out power is that
"whenever it becomes necessary," the President may call the armed forces "to prevent or
suppress lawless violence, invasion or rebellion." Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the best
position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. For
this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater
power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the Presidents authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyos authority to declare a "state of rebellion" emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation
is made to depend, shall be promulgated in proclamations which shall have the force of an
executive order.
President Arroyos declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on
the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section
17, Article XII, a provision on the States extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It
is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the
President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called
upon by the executive to assist in the maintenance of law and order, and that, while the emergency
lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way
render more difficult the restoration of order and the enforcement of law." 113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente
V. Mendoza,114an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil
liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of the President for the purpose of
enabling him to secure the people from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a
call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot
be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any
other purpose is a perversion of its nature and scope, and any act done contrary to its command
is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants;
(b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and
(d) issuance of Presidential Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyos calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary function of the President is
to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it
that all laws are enforced by the officials and employees of his department. Before assuming office,
he is required to take an oath or affirmation to the effect that as President of the Philippines, he will,
among others, "execute its laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of Interior and Local
Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael
Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it
arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
\ Congress.
Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was
lifted120 from Former President Marcos Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby
place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law
and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations promulgated by me personally
or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling clause
of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me
personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated
in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation
is made to depend, shall be promulgated in proclamations which shall have the force of an
executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of
subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance, shall
be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.
President Arroyos ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they were
issued by the President in the exercise of his legislative power during the period of Martial Law
under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the province
of the Legislature. Section 1, Article VI categorically states that "[t]he legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyos exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the
military to enforce or implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can only order the military,
under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of
the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national emergency under
PP 1017, can call the military not only to enforce obedience "to all the laws and to all decrees x x x"
but also to act pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued PP
1017?
The answer is simple. During the existence of the state of national emergency, PP 1017 purports to
grant the President, without any authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking
of the 1971 Constitutional Convention.122 In effect at the time of its approval was President Marcos
Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense
to take over "the management, control and operation of the Manila Electric Company, the Philippine
Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . .
for the successful prosecution by the Government of its effort to contain, solve and end the present
national emergency."
Petitioners, particularly the members of the House of Representatives, claim that President Arroyos
inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislatures emergency
powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section 18,
Article VII grants the President such power, hence, no legitimate constitutional objection can be
raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war but
also to "other national emergency." If the intention of the Framers of our Constitution was to
withhold from the President the authority to declare a "state of national emergency" pursuant to
Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not intend
that Congress should first authorize the President before he can declare a "state of national
emergency." The logical conclusion then is that President Arroyo could validly declare the existence
of a state of national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public utility or
business affected with public interest, is a different matter. This requires a delegation from
Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the limitation of the
exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body
cannot delegate a power not reposed upon it. However, knowing that during grave emergencies,
it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of
our Constitution deemed it wise to allow Congress to grant emergency powers to the President,
subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may
prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared
by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately owned public utility or business affected with public
interest," it refers to Congress, not the President. Now, whether or not the President may exercise
such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing
the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants this
power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article
II which say that "The executive Power shall be vested in a President . . . .;" that "he shall take Care
that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the Army and
Navy of the United States.
The order cannot properly be sustained as an exercise of the Presidents military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though "theater of war" be an expanding
concept, we cannot with faithfulness to our constitutional system hold that the Commander-
in-Chief of the Armed Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production. This is a job for the
nations lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that
grant executive power to the President. In the framework of our Constitution, the Presidents
power to see that the laws are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that "All legislative Powers herein
granted shall be vested in a Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII
refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of
"emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in
this definitions are the elements of intensity, variety, and perception. 127 Emergencies, as perceived
by legislature or executive in the United Sates since 1933, have been occasioned by a wide range
of situations, classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.131 This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of "national emergency" which appears in
Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132
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MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to take over privately-owned public utility or
business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects
and shortcomings, in preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under
this framework of government, legislation is preserved for Congress all the time, not excepting
periods of crisis no matter how serious. Never in the history of the United States, the basic features
of whose Constitution have been copied in ours, have specific functions of the legislative branch of
enacting laws been surrendered to another department unless we regard as legislating the
carrying out of a legislative policy according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in a life-and-death struggle to preserve
the Union. The truth is that under our concept of constitutional government, in times of extreme
perils more than in normal circumstances the various branches, executive, legislative, and judicial,
given the ability to act, are called upon to perform the duties and discharge the responsibilities
committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business affected
with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business affected with public interest.
Nor can he determine when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected with public
interest that should be taken over. In short, the President has no absolute authority to exercise all
the powers of the State under Section 17, Article VII in the absence of an emergency powers act
passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals
that in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights suffered the
greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power
I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Three
policemen were assigned to guard their office as a possible "source of destabilization." Again, the
basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were
"turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the
20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted
from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused135 and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be determined from its general purpose
and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP
1017 is merely an invocation of the Presidents calling-out power. Its general purpose is to
command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is
nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or
violate the citizens constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or
ordinance is to be measured is the essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing them
have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the
cases passed upon by the Court, majority of the provisions of the Revised Penal Code would have
been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders
are "acts and commands of the President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines." They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficientadministration of law. Such rules and regulations create no
relation except between the official who issues them and the official who receives them. 139 They are
based on and are the product of, a relationship in which power is their source, and obedience, their
object.140 For these reasons, one requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution,
and which is invariably associated with "invasion, insurrection or rebellion," the phrase "acts of
terrorism" is still an amorphous and vague concept. Congress has yet to enact a law defining and
punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts
not only our country, but the international community as well. The following observations are quite
apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has become one
of the basic slogans when it comes to the justification of the use of force against certain states and
against groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions or threats of the use of force as the most
recent by the United States against Iraq consists in the absence of an agreed definition of
terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One countrys terrorist is another countrys freedom
fighter." The apparent contradiction or lack of consistency in the use of the term "terrorism" may
further be demonstrated by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to
mention only a few, were originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing those
acts from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but
has been unable to bridge the gap between those who associate "terrorism" with any violent act by
non-state groups against civilians, state functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) which is a terrorist group for Israel and a liberation movement for Arabs and
Muslims the Kashmiri resistance groups who are terrorists in the perception of India, liberation
fighters in that of Pakistan the earlier Contras in Nicaragua freedom fighters for the United
States, terrorists for the Socialist camp or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a group of freedom fighters
for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go
on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any
way because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one
and the same group and its actions be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an occupying power in a given
territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-
versa.
The United Nations Organization has been unable to reach a decision on the definition of terrorism
exactly because of these conflicting interests of sovereign states that determine in each and every
instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of international
affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states and not of
peoples, in spite of the emphasis in the Preamble to the United Nations Charter! has become even
more serious in the present global power constellation: one superpower exercises the decisive role
in the Security Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States. 141
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of
the police or military. An illustration is when a group of persons are merely engaged in a drinking
spree. Yet the military or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining the same as such
and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however,
do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is President
Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism.
Her judgment on this aspect is absolute, without restrictions. Consequently, there can be
indiscriminate arrest without warrants, breaking into offices and residences, taking over the media
enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the
administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the
calling-out power of the President. Certainly, they violate the due process clause of the Constitution.
Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond
what are necessary and appropriate to suppress and prevent lawless violence, the limitation of
their authority in pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons, houses,
papers and effects against unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized." 142 The plain import of the language of the
Constitution is that searches, seizures and arrests are normally unreasonable unless authorized by
a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this
provision is that between person and police must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue search warrants or warrants of arrest. 143
In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP
1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen
who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained
for seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
 (b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts with
the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader
of the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and
even if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further,
he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not
even known whether petitioner David was the leader of the rally. 147
But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our republican institution and complements the right
of speech. As in the case of freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that Congress has a right
to prevent. In other words, like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior
issuance of a permit or authorization from the government authorities except, of course, if the
assembly is intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were exercising their
right to peaceful assembly. They were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting
officers conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be made a
crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings
cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices under which the meeting was held but
as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the persons assembling have
committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it
is a different matter when the State, instead of prosecuting them for such offenses, seizes
upon mere participation in a peaceable assembly and a lawful public discussion as the basis
for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done
merely on the basis of Malacaangs directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has a
right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing that
an assembly presents a clear and present danger that the State may deny the citizens right to
exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed
acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the
distinction between protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits. 150 The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a
persons right is restricted by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribunes offices were searched without
warrant;second, the police operatives seized several materials for publication; third, the search was
conducted at about 1:00 o clock in the morning of February 25, 2006; fourth, the search was
conducted in the absence of any official of the Daily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was "meant to show a strong presence, to tell
media outlets not to connive or do anything that would help the rebels in bringing down this
government." Director General Lomibao further stated that "if they do not follow the standards
and the standards are if they would contribute to instability in the government, or if they do
not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend
a takeover." National Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of national emergency. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage during times when the national security is
threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in
the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of the
latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless
the property is on the person or in the place ordered to be searched, in which case a direction may
be inserted that it be served at any time of the day or night. All these rules were violated by the
CIDG operatives.
Not only that, the search violated petitioners freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff152 this Court held that --
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of
the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and
"We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no more and no
less than what he is permitted to say on pain of punishment should he be so rash as to
disobey.153Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because
of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional
right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto
should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribunes offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get
the clippings. Is that not in admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor,
and these are inadmissible for any purpose.155
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SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to do is to get those
past issues. So why do you have to go there at 1 oclock in the morning and without any search
warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based
on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that
the police could go and inspect and gather clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to say this, we do
not condone this. If the people who have been injured by this would want to sue them, they
can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on
the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as
you said, a misapplication of the law. These are acts of the police officers, that is their
responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and
"should result in no constitutional or statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out
by the President of the military to prevent or suppress lawless violence, invasion or rebellion. When
in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts
which violate the citizens rights under the Constitution, this Court has to declare such acts
unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is
considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal
acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017,
or one similar to it, may not again be issued. Already, there have been media reports on April 30,
2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not be "evaded;" they must
now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However,
PP 1017s extraneous provisions giving the President express or implied power (1) to issue decrees;
(2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards on media or any form of
prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take
over privately-owned public utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as
Commander-in-Chief addressed to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard that the military and the police should take only the
"necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and
made punishable by Congress and should thus be deemed deleted from the said G.O. While
"terrorism" has been denounced generally in media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of the AFPs authority in carrying out this portion of
G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1)
the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the
rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of
PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due process bars this Court
from making any specific pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil rights are
ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in breadth and intensity from
normal times, yet they should not be arbitrary as to unduly restrain our peoples liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the various competing
political philosophies is that, it is possible to grant government the authority to cope with crises
without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding
the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned public utility or business
affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures
to suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not
yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest
of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these
petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP
880; the imposition of standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for publication and
other materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
G.R. No. 203775 August 5, 2014
ASSOCIATION OF FLOOD VICTIMS and JAIME AGUILAR HERNANDEZ, Petitioners,
vs.
COMMISSION ON ELECTIONS, ALAY BUHAY COMMUNITY DEVELOPMENT FOUNDATION,
INC., and WESLIE TING GATCHALIAN, Respondents.
RESOLUTION
CARPIO, Acting C.J.:
The Case
This is a Petition for Certiorari and/or Mandamus under Rule 65 of the Rules of Court, assailing the
Minute Resolution No. 12-0859 dated 2 October 2012 of the Commission on Elections (COMELEC).
The COMELEC Minute Resolution No. 12-0859, among others, (1) confirmed the re-computation of
the allocation of seats of the Party-List System of Representation in the House of Representatives in
the 10 May 2010 automated national and local elections, (2) proclaimed Alay Buhay Community
Development Foundation, Inc. (Alay-Buhay) Party-List as a winning party-list group in the 10 May
2010 elections, and (3) declared the first nominee [Weslie T. Gatchalian] of Alay Buhay Party-List as
its Party-List Representative in the House of Representatives.
The Facts
On 28 August 2012, the Supreme Court affirmed COMELEC Resolution SPP 10-013, dated 11
October 2011, cancelling the certificate of registration of the Alliance of Barangay Concerns (ABC)
Party-List which won in the party-list elections in the 2010 national elections. The disqualification of
the ABC Party-List resulted in the re-computation of the party-list allocations in the House of
Representatives, in which the COMELEC followed the formula outlined in the case of Barangay
Association for National Advancement and Transparency (BANAT) v. Commission on Elections. 1
The COMELEC then issued Minute Resolution No. 12-0859, in which it resolved:
1. TO GRANT the September 14, 2012 Urgent Motion for Proclamation of Alay Buhay
Community Development Foundation, Inc. (Alay Buhay) Party-List;
2. TO DENY the September 20, 2012 Very Very Urgent Ex-Parte Motion of Coalition of
Associations of Senior Citizens of the Philippines, Inc. (Senior Citizens) Party-List;
3. TO NOTE the September 24, 2012 Opposition to Senior CitizensParty-Lists "Very
Very UrgentEx-Parte Motion" of Alay Buhay Community Development Foundation, Inc.
(Alay Buhay) Party-List;
4. TO CONFIRM the herein RE-COMPUTATION OF THE ALLOCATION OF SEATS
of the Party-List System of Representation in the House of Representatives in the May
10, 2010 Automated National and Local Elections;
5. TO PROCLAIM Alay Buhay Community Development Foundation, Inc. (Alay Buhay)
Party-List as a winning party-list group in the Party-List System of Representation in
the House of Representatives in the May 10, 2010 Automated National and Local
Elections; and
6. TO DECLARE the First (1st) NOMINEE of Alay Buhay Community Development
Foundation, Inc. (Alay Buhay) Party-List, as the FIRST (1st) SITTING
REPRESENTATIVE in the Party-List System of Representation in the House of
Representatives in accordance with the Order of Nominees per the List appearing in
its March 17, 2010 Certificate of Nomination.2
On 25 October 2012, petitioners Association of Flood Victims and Jaime Aguilar Hernandez
(Hernandez) filed with this Court a special civil action for certiorari and/or mandamus under Rule 65
of the Rules of Court. Petitioners assert that the COMELEC committed grave abuse of discretion
when it issued Minute Resolution No. 12-0859. Furthermore, petitioners pray for the issuance of a
writ of mandamus to compel publication of the COMELEC Minute Resolution No. 12-0859.
The Issues
The issues raised in this case are: (1) whether the COMELEC committed grave abuse of discretion
in issuing Minute Resolution No. 12-0859, and (2) whether the COMELEC may be compelled
through mandamus to publish Minute Resolution No. 12-0859.
The Ruling of the Court
We dismiss the petition.
Petitioners do not have legal capacity to sue. Sections 1 and 2, Rule 3 of the 1997 Rules of Civil
Procedure read:
SECTION 1. Who may be parties; plaintiff and defendant. Only natural or juridical persons, or
entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the
claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) -party plaintiff. The
term "defendant" may refer to the original defending party, the defendant in a counterclaim, the
cross-defendant, or the third (fourth, etc.) -party defendant.
SECTION 2. Parties in interest. A real party in interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or defended in the name of the
real party in interest.
Under Sections 1 and 2 of Rule 3, only natural or juridical persons, or entities authorized by law may
be parties in a civil action, which must be prosecuted or defended in the name of the real party in
interest. Article 44 of the Civil Code lists the juridical persons with capacity to sue, thus:
Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created
by law; their personality begins as soon as they have been constituted according to
law;
(3) Corporations, partnerships and associations for private interest or purpose to which
the law grants a juridical personality, separate and distinct from that of each
shareholder, partner or member. (Emphasis supplied)
Section 4, Rule 8 of the Rules of Court mandates that "[f]acts showing the capacity of a party to sue
or be sued or the authority of a party to sue or be sued in a representative capacity or the legal
existence of an organized association of persons that is made a party, must be averred."
In their petition, it is stated that petitioner Association of Flood Victims "is a non-profit and non-
partisan organization in the process of formal incorporation, the primary purpose of which is for the
benefit of the common or general interest of many flood victims who are so numerous that it is
impracticable to join all as parties," and that petitioner Hernandez "is a Tax Payer and the Lead
Convenor of the Association of Flood Victims."3 Clearly, petitioner Association of Flood Victims,
which is still in the process of incorporation, cannot be considered a juridical person or an entity
authorized by law, which can be a party to a civil action. 4
Petitioner Association of Flood Victims is an unincorporated association not endowed with a distinct
personality of its own. An unincorporated association, in the absence of an enabling law, has no
juridical personality and thus, cannot sue in the name of the association. 5 Such unincorporated
association is not a legal entity distinct from its members. If an association, like petitioner
Association of Flood Victims, has no juridical personality, then all members of the association must
be made parties in the civil action.6 In this case, other than his bare allegation that he is the lead
convenor of the Association of Flood Victims, petitioner Hernandez showed no proof that he was
authorized by said association. Aside from petitioner Hernandez, no other member was made
signatory to the petition. Only petitioner Hernandez signed the Verification and Sworn Certification
Against Forum Shopping,7 stating that he caused the preparation of the petition. There was no
accompanying document showing that the other members of the Association of Flood Victims
authorized petitioner Hernandez to represent them and the association in the petition.
In Dueas v. Santos Subdivision Homeowners Association, 8 the Court held that the Santos
Subdivision Homeowners Association (SSHA), which was an unincorporated association, lacks
capacity to sue in its own name, and that the members of the association cannot represent the
association without valid authority, thus:
There is merit in petitioner's contention. Under Section 1, Rule 3 of the Revised Rules of Court, only
natural or juridical persons or entities authorized by law may be parties in a civil action. Article44 of
the Civil Code enumerates the various classes of juridical persons. Under said Article, an
association is considered a juridical person if the law grants it a personality separate and distinct
from that of its members. The records of the present case are bare of any showing by SSHA that it
is an association duly organized under Philippine law. It was thus error for the HLURBNCR Office to
give due course to the complaint in HLURB Case No. REM-070297-9821, given SSHA's lack of
capacity to sue in its own name. Nor was it proper for said agency to treat the complaint as a suit by
all the parties who signed and verified the complaint. The members cannot represent their
association in any suit without valid and legal authority. Neither can their signatures confer on the
association any legal capacity to sue. Nor will the fact that SSHA belongs to the Federation of
Valenzuela Homeowners Association, Inc., suffice to endow SSHA with the personality and capacity
to sue. Mere allegations of membership in a federation are insufficient and inconsequential. The
federation itself has a separate juridical personality and was not impleaded as a party in HLURB
Case No. REM-070297-9821 nor in this case. Neither was it shown that the federation was
authorized to represent SSHA. Facts showing the capacity of a party to sue or be sued or the
authority of a party to sue or be sued in a representative capacity or the legal existence of an
organized association of persons that is made a party, must be averred. Hence, for failing to show
that it is a juridical entity, endowed by law with capacity to bring suits in its own name, SSHA is
devoid of any legal capacity, whatsoever, to institute any action. 9
More so in this case where there is no showing that petitioner Hernandez is validly authorized to
represent petitioner Association of Flood Victims.
Since petitioner Association of Flood Victims has no legal capacity to sue, petitioner Hernandez,
who is filing this petition as a representative of the Association of Flood Victims, is likewise devoid of
legal personality to bring an action in court.1wphi1 Neither can petitioner Hernandez sue as a
taxpayer because he failed to show that there was illegal expenditure of money raised by
taxation10 or that public funds are wasted through the enforcement of an invalid or unconstitutional
law.11
Besides, petitioners have no locus standi or legal standing. Locus standi or legal standing is defined
as:
x x x a personal and substantial interest in the case such that the party has sustained or will sustain
a direct injury as a result of the governmental act that is being challenged. The term "interest"
means a material interest, an. interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. The gist of the question of standing is
whether a party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.12
In this case, petitioners failed to allege personal or substantial interest . in the questioned
governmental act which is the issuance of COMELEC Minute Resolution No. 12-0859, which
confirmed the re-computation of the allocation of seats of the Party-List System of Representation in
the House of Representatives in the 10 May 2010 Automated National and Local Elections.
Petitioner Association of Flood Victims is not even a party-list candidate in the 10 May 2010
elections, and thus, could not have been directly affected by COMELEC Minute Resolution No. 12-
0859.
In view of our holding that petitioners do not have legal capacity to sue and have no standing to file
the present petition, we shall no longer discuss the issues raised in this petition. WHEREFORE, we
DISMISS the petition.
SO ORDERED.
G.R. No. 180771 April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAON STRAIT, e.g.,
TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in
and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-
Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible
Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional
Director-Region VII and in his capacity as Chairperson of the Taon Strait Protected
Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BFAR),
DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES
M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.
x-----------------------x
CONCURRING OPINION
"Until one has loved an animal,
a part of one 's soul remains unawakened."
Anatole France
LEONEN, J.:
I concur in the result, with the following additional reasons.
I
In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their
personal capacity, alleging that they stand to benefit or be injured from the judgment on the issues.
The human petitioners implead themselves in a representative capacity "as legal guardians of the
lesser life-forms and as responsible stewards of God's Creations." 1 They use Oposa v. Factoran,
Jr.2 as basis for their claim, asserting their right to enforce international and domestic environmental
laws enacted for their benefit under the concept of stipulation pour autrui.3As the representatives of
Resident Marine Mammals, the human petitioners assert that they have the obligation to build
awareness among the affected residents of Taon Strait as well as to protect the environment,
especially in light of the government's failure, as primary steward, to do its duty under the doctrine of
public trust.4
Resident Marine Mammals and the human petitioners also assert that through this case, this court
will have the opportunity to lower the threshold for locus standi as an exercise of "epistolary
jurisdiction."5
The zeal of the human petitioners to pursue their desire to protect the environment and to continue
to define environmental rights in the context of actual cases is commendable. However, the space
for legal creativity usually required for advocacy of issues of the public interest is not so unlimited
that it should be allowed to undermine the other values protected by current substantive and
procedural laws. Even rules of procedure as currently formulated set the balance between
competing interests. We cannot abandon these rules when the necessity is not clearly and
convincingly presented.
The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights for
animals through their allegation that they can speak for them. Obviously, we are asked to accept the
premises that (a) they were chosen by the Resident Marine Mammals of Taon Strait; (b) they were
chosen by a representative group of all the species of the Resident Marine Mammals; (c) they were
able to communicate with them; and (d) they received clear consent from their animal principals that
they would wish to use human legal institutions to pursue their interests. Alternatively, they ask us to
acknowledge through judicial notice that the interests that they, the human petitioners, assert are
identical to what the Resident Marine Mammals would assert had they been humans and the legal
strategies that they invoked are the strategies that they agree with.
In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.
Fundamental judicial doctrines that may significantly change substantive and procedural law cannot
be founded on feigned representation.
Instead, I agree that the human petitioners should only speak for themselves and already have legal
standing to sue with respect to the issue raised in their pleading. The rules on standing have already
been liberalized to take into consideration the difficulties in the assertion of environmental rights.
When standing becomes too liberal, this can be the occasion for abuse.
II
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:
SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil action.
The Rules provide that parties may only be natural or juridical persons or entities that may be
authorized by statute to be parties in a civil action.
Basic is the concept of natural and juridical persons in our Civil Code:
ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in
every natural person and is lost only through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost.
Article 40 further defines natural persons in the following manner:
ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all
purposes that are favorable to it, provided it be born later with the conditions specified 'in the
following article.
Article 44, on the other hand, enumerates the concept of a juridical person:
ARTICLE 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created
by law; their personality begins as soon as they have been constituted according to
law;
(3) Corporations, partnerships and associations for private interest or purpose to which
the law grants a juridical personality, separate and distinct from that of each
shareholder, partner or member.
Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the
provisions of the Rules of Court as well as substantive law to accommodate Resident Marine
Mammals or animals. This we cannot do.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:
SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest. (2a)6
A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.7 When a case is brought to the courts, the real party in interest must show that another
party's act or omission has caused a direct injury, making his or her interest both material and based
on an enforceable legal right.8
Representatives as parties, on the other hand, are parties acting in representation of the real party
in interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:
SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by
a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the
title of the case and shall be deemed to be the real party in interest. A representative may be a
trustee of an express rust, a guardian, an executor or administrator, or a party authorized by law or
these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may
sue or be sued without joining the principal except when the contract involves things belonging to
the principal.(3a)9
The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly or
actually benefit or suffer from the judgment, but instead brings a case in favor of an identified real
party in interest.10 The representative is an outsider to the cause of action. Second, the rule provides
a list of who may be considered as "representatives." It is not an exhaustive list, but the rule limits
the coverage only to those authorized by law or the Rules of Court. 11
These requirements should apply even in cases involving the environment, which means that for the
Petition of the human petitioners to prosper, they must show that (a) the Resident Marine Mammals
are real parties in interest; and (b) that the human petitioners are authorized by law or the Rules to
act in a representative capacity.
The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other
cetacean species inhabiting Taon Strait."12 While relatively new in Philippine jurisdiction, the issue
of whether animals have legal standing before courts has been the subject of academic discourse in
light of the emergence of animal and environmental rights.
In the United States, anim4l rights advocates have managed to establish a system which Hogan
explains as the "guardianship model for nonhuman animals": 13
Despite Animal Lovers, there exists a well-established system by which nonhuman animals may
obtain judicial review to enforce their statutory rights and protections: guardianships. With court
approval, animal advocacy organizations may bring suit on behalf of nonhuman animals in the same
way court-appointed guardians bring suit on behalf of mentally-challenged humans who possess an
enforceable right but lack the ability to enforce it themselves.
In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural
Objects, Christopher D. Stone asserts that the environment should possess the right to seek judicial
redress even though it is incapable of representing itself. While asserting the rights of
speechless entities such as the environment or nonhuman animals certainly poses legitimate
challenges - such as identifying the proper spokesman -the American legal system is already well-
equipped with a reliable mechanism by which nonhumans may obtain standing via a judicially
established guardianship. Stone notes that other speechless - and nonhuman - entities such as
corporations, states, estates, and municipalities have standing to bring suit on their own behalf.
There is little reason to fear abuses under this regime as procedures for removal and substitution,
avoiding conflicts of interest, and termination of a guardianship are well established.
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that AL VA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.
This Comment advocates a shift in contemporary standing doctrine to empower non-profit
organizations with an established history of dedication to the cause and relevant expertise to serve
as official guardians ad !item on behalf of nonhuman animals interests. The American legal system
has numerous mechanisms for representing the rights and interests of nonhumans; any challenges
inherent in extending these pre-existing mechanisms to nonhuman animals are minimal compared
to an interest in the proper administration of justice. To adequately protect the statutory rights of
nonhuman animals, the legal system must recognize those statutory rights independent of humans
and provide a viable means of enforcement. Moreover, the idea of a guardianship for speechless
plaintiffs is not new and has been urged on behalf of the natural environment. 'Such a model is even
more compelling as applied to nonhuman animals, because they are sentient beings with the ability
to feel pain and exercise rational thought. Thus, animals are qualitatively different from other legally
protected nonhumans and therefore have interests deserving direct legal protection.
Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the
integrity of the federal statutes designed to protect them, essentially rendering them meaningless.
Sensing that laws protecting nonhuman animals would be difficult to enforce, Congress provided for
citizen suit provisions: the most well-known example is found in the Endangered Species Act (ESA).
Such provisions are evidence of legislative intent to encourage civic participation on behalf of
nonhuman animals. Our law of standing should reflect this intent and its implication that humans are
suitable representatives of the natural environment, which includes nonhuman animals. 14 (Emphasis
supplied, citation omitted)
When a court allows guardianship as a basis of representation, animals are considered as similarly
situated as individuals who have enforceable rights but, for a legitimate reason (e.g., cognitive
disability), are unable to bring suit for themselves. They are also similar to entities that by their very
nature are incapable of speaking for themselves (e.g., corporations, states, and others).
In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as having
standing to sue and, therefore, may be properly represented as real parties in interest. The same
cannot be said about animals.
Animals play an important role in households, communities, and the environment. While we, as
humans, may feel the need to nurture and protect them, we cannot go as far as saying we represent
their best interests and can, therefore, speak for them before the courts. As humans, we cannot be
so arrogant as to argue that we know the suffering of animals and that we know what remedy they
need in the face of an injury.
Even in Hogan's discussion, she points out that in a case before the United States District Court for
the Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the court held that
an emotional response to what humans perceive to be an injury inflicted on an animal is not within
the "zone-of-interest" protected by law.16Such sympathy cannot stand independent of or as a
substitute for an actual injury suffered by the claimant. 17 The ability to represent animals was further
limited in that case by the need to prove "genuine dedication" to asserting and protecting animal
rights:
What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing
doctrine further required ALVA to differentiate its genuine dedication to the humane treatment of
animals from the general disdain for animal cruelty shared by the public at large. In doing so, the
court found ALVA 's asserted organizational injury to be abstract and thus relegated ALVA to the
ranks of the "concerned bystander. "
....
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that ALVA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.18(Emphasis supplied, citation omitted)
What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for Environmental
Cases. A citizen suit allows any Filipino to act as a representative of a party who has enforceable
rights under environmental laws before Philippine courts, and is defined in Section 5: .
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under environmental laws.
Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description
of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their
interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish
the order once in a newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order.
There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let alone
present that they would wish to use our court system, which is designed to ensure that humans
seriously carry their responsibility including ensuring a viable ecology for themselves, which of
course includes compassion for all living things.
Our rules on standing are sufficient and need not be further relaxed.
In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have given
to the rule on standing. While representatives are not required to establish direct injury on their part,
they should only be allowed to represent after complying with the following: [I]t is imperative for them
to indicate with certainty the injured parties on whose behalf they bring the suit. Furthermore, the
interest of those they represent must be based upon concrete legal rights. It is not sufficient to draw
out a perceived interest from a general, nebulous idea of a potential "injury." 20
I reiterate my position in Arigo v. Swift and in Paje v. Casio 21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran 22 for environmental cases. In Arigo, I opined that
procedural liberality, especially in cases brought by representatives, should be used with great
caution:
Perhaps it is time to revisit the ruling in Oposa v. Factoran.
That case was significant in that, at that time, there was need to call attention to environmental
concerns in light of emerging international legal principles. While "intergenerational responsibility" is
a noble principle, it should not be used to obtain judgments that would preclude future generations
from making their own assessment based on their actual concerns. The present generation must
restrain itself from assuming that it can speak best for those who will exist at a different time, under
a different set of circumstances. In essence, the unbridled resort to representative suit will inevitably
result in preventing future generations from protecting their own rights and pursuing their own
interests and decisions. It reduces the autonomy of our children and our children 's children. Even
before they are born, we again restricted their ability to make their own arguments.
It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be
allowed only when a) there is a clear legal basis for the representative suit; b) there are actual
concerns based squarely upon an existing legal right; c) there is no possibility of any countervailing
interests existing within the population represented or those that are yet to be born; and d) there is
an absolute necessity for such standing because there is a threat of catastrophe so imminent that
an immediate protective measure is necessary. Better still, in the light of its costs and risks, we
abandon the precedent all together.23 (Emphasis in the original)
Similarly, in Paje:
A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He or
she who invokes the court's jurisdiction must be the "owner of the right sought to be enforced." In
other words, he or she must have a cause of action. An action may be dismissed on the ground of
lack of cause of action if the person who instituted it is not the real party in interest.24 The term
"interest" under the Rules of Court must refer to a material interest that is not merely a curiosity
about or an "interest in the question involved." The interest must be present and substantial. It is not
a mere expectancy or a future, contingent interest.
A person who is not a real party in interest may institute an action if he or she is suing as
representative of a .real party in interest. When an action is prosecuted or defended by a
representative, that representative is not and does not become the real party in interest. The person
represented is deemed the real party in interest. The representative remains to be a third party to
the action instituted on behalf of another.
....
To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an
identified party whose right has been violated, resulting in some form of damage, and (b) the
representative authorized by law or the Rules of Court to represent the victim."
The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit
under this rule allows any Filipino citizen to file an action for the enforcement of environmental law
on behalf of minors or generations yet unborn. It is essentially a representative suit that allows
persons who are not real parties in interest to institute actions on behalf of the real party in interest.
The expansion of what constitutes "real party in interest" to include minors and generations yet
unborn is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the capacity
of minors (represented by their parents) to file a class suit on behalf of succeeding generations
based on the concept of intergenerational responsibility to ensure the future generation's access to
and enjoyment of [the] country's natural resources.
To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:
First, they run the risk of foreclosing arguments of others who are unable to take part in the suit,
putting into. question its representativeness. Second, varying interests may potentially result in
arguments that are bordering on political issues, the resolutions of which do not fall upon this court.
Third, automatically allowing a class or citizen's suit on behalf of minors and generations yet unborn
may result in the oversimplification of what may be a complex issue, especially in light of the
impossibility of determining future generation's true interests on the matter.
In citizen's suits, persons who may have no interest in the case may file suits for others.
Uninterested persons will argue for the persons they represent, and the court will decide based on
their evidence and arguments. Any decision by the court will be binding upon the beneficiaries,
which in this case are the minors and the future generations. The court's decision will be res judicata
upon them and conclusive upon the issues presented.25
The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its
potential to diminish the value of legitimate environmental rights. Extending the application of "real
party in interest" to the Resident Marine Mammals, or animals in general, through a judicial
pronouncement will potentially result in allowing petitions based on mere concern rather than an
actual enforcement of a right. It is impossible for animals to tell humans what their concerns are. At
best, humans can only surmise the extent of injury inflicted, if there be any. Petitions invoking a right
and seeking legal redress before this court cannot be a product of guesswork, and representatives
have the responsibility to ensure that they bring "reasonably cogent, rational, scientific, well-founded
arguments"26 on behalf of those they represent.
Creative approaches to fundamental problems should be welcome. However, they should be
considered carefully so that no unintended or unwarranted consequences should follow. I concur
with the approach of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as it
carefully narrows down the doctrine in terms of standing. Resident Marine Mammals and the human
petitioners have no legal standing to file any kind of petition.
However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk
Development Center,. Engarcial, Yanong, and Labid, have standing both as real parties in interest
and as representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and
Pinamungahan, Cebu, and their families, and the present and future generations of Filipinos whose
rights are similarly affected. The activities undertaken under Service Contract 46 (SC-46) directly
affected their source of livelihood, primarily felt through the significant reduction of their fish
harvest.27 The actual, direct, and material damage they suffered, which has potential long-term
effects transcending generations, is a proper subject of a legal suit.
III
In our jurisdiction, there is neither reason nor any legal basis for the concept of implied petitioners,
most especially when the implied petitioner was a sitting President of the Republic of the
Philippines. In G.R. No. 180771, apart from adjudicating unto themselves the status of "legal
guardians" of whales, dolphins, porpoises, and other cetacean species, human petitioners also
impleaded Former President Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her express
declaration and undertaking in the ASEAN Charter to protect Taon Strait." 28
No person may implead any other person as a co-plaintiff or co-petitioner without his or her consent.
In our jurisdiction, only when there is a party that should have been a necessary party but was
unwilling to join would there be an allegation as to why that party has been omitted. In Rule 3,
Section 9 of the 1997 Rules of Civil Procedure:
SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a claim
is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall
state why he is omitted. Should the court find the reason for the omission unmeritorious, it may
order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a
waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action,
and the judgment rendered therein shall be without prejudice to the rights of such necessary party.29
A party who should have been a plaintiff or petitioner but whose consent cannot be obtained should
be impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3, Section 10 of the
1997 Rules of Civil Procedure:
SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not
be obtained, he may be made a defendant and the reason therefor shall be stated in the
complaint.30
The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action but
who do not consent should be put within the jurisdiction of the court through summons or other court
processes. Petitioners. should not take it upon themselves to simply imp lead any party who does
not consent as a petitioner. This places the unwilling co-petitioner at the risk of being denied due
process.
Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy directions
by suing his or her alter-egos. The procedural situation caused by petitioners may have gained
public attention, but its legal absurdity borders on the contemptuous. The Former President's name
should be stricken out of the title of this case.
IV
I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.
SC-46 is illegal because it violates Republic Act No. 7586 or the National Integrated Protected
Areas System Act of 1992, and Presidential Decree No. 1234, 31 which declared Taon Strait as a
protected seascape. It is unconstitutional because it violates the fourth paragraph of Article XII,
Section 2 of the Constitution.
V resources. (Emphasis supplied)
Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII,
Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co., Ltd.
(JAPEX) is 100% Japanese-owned.32 It further asserts that SC-46 cannot be validly classified as a
technical and financial assistance agreement executed under Article XII, Section 2, paragraph 4 of
the 1987 Constitution.33 Public respondents counter that SC-46 does not fall under the coverage of
paragraph 1, but is a validly executed contract under paragraph 4. 34 Public respondents further
aver that SC-46 neither granted exclusive fishing rights to JAPEX nor violated Central Visayas
Fisherfolk Development Center's right to preferential use of communal marine and fishing
resources.35
VI
Article XII, Section 2 of the 1987 Constitution states:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception. of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers,
lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphasis supplied)
I agree that fully foreign-owned corporations may participate in the exploration, development, and
use of natural resources, but only through either financial agreements or technical ones. This is the
clear import of the words "either financial or technical assistance agreements." This is also
the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and
1935 Constitution:
1973 CONSTITUTION
ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION
SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or
association at least sixty per centum of the capital of which is owned by such citizens. The Batasang
Pambansa, in the national interest, may allow such citizens, corporations, or associations to enter
into service contracts for financial, technical, management, or other forms of assistance with any
foreign person or entity for the exploitation, development, exploitation, or utilization of any of the
natural resources. Existing valid and binding service contracts for financial, the technical,
management, or other forms of assistance are hereby recognized as such. (Emphasis supplied)
1935 CONSTITUTION
ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES
SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall
be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of
the capital of which is owned by such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, in which cases beneficial use may be the measure and the
limit of the grant.
The clear text of the Constitution in light of its history prevails over any attempt to infer interpretation
from the Constitutional Commission deliberations. The constitutional texts are the product of a full
sovereign act: deliberations in a constituent assembly and ratification. Reliance on recorded
discussion of Constitutional Commissions, on the other hand, may result in dependence on
incomplete authorship; Besides, it opens judicial review to further subjectivity from those who spoke
during the Constitutional Commission deliberations who may not have predicted how their words will
be used. It is safer that we use the words already in the Constitution. The Constitution was their
product. Its words were read by those who ratified it. The Constitution is what society relies upon
even at present.
SC-46 is neither a financial assistance nor a technical assistance agreement.
Even supposing for the sake of argument that it is, it could not be declared valid in light of the
standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36
Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:
(1) The service contract shall be crafted m accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to
the country.
(2) The President shall be the signatory for the government because, supposedly
before an agreement is presented to the President for signature, it will have been
vetted several times over at different levels to ensure that it conforms to law and can
withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to
Congress to give that branch of government an opportunity to look over the agreement
and interpose timely objections, if any.37 (Emphasis in the original, citation omitted)
Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three
important points: (a) whether SC-46 was crafted in accordance with a general law that provides
standards, terms, and conditions; (b) whether SC-46 was signed by the President for and on behalf
of the government; and (c) whether it was reported by the President to Congress within 30 days of
execution.
VII
The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87 or
the Oil Exploration and Development Act of 1972.1wphi1 It is my opinion that this law is
unconstitutional in that it allows service contracts, contrary to Article XII, Section 2 of the 1987
Constitution:
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
The deletion of service contracts from the enumeration of the kind of agreements the President may
enter into with foreign-owned corporations for exploration and utilization of resources means that
service contracts are no longer allowed by the Constitution. Pursuant to Article XVIII, Section 3 of
the 1987 Constitution,38 this inconsistency renders the law invalid and ineffective.
SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes an
important point, which is that SC-46 did not merely involve exploratory activities, but also provided
the rights and obligations of the parties should it be discovered that there is oil in commercial
quantities in the area. The Taon Strait being a protected seascape under Presidential Decree No.
123439 requires that the exploitation and utilization of energy resources from that area are explicitly
covered by a law passed by Congress specifically for that purpose, pursuant to Section 14 of
Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992:
SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIP AS areas shall be allowed only through a law
passed by Congress.40 (Emphasis supplied)
No law was passed by Congress specifically providing the standards, terms, and conditions of an oil
exploration, extraction, and/or utilization for Taon Strait and, therefore, no such activities could
have been validly undertaken under SC-46. The National Integrated Protected Areas System Act of
1992 is clear that exploitation and utilization of energy resources in a protected seascape such as
Taon Strait shall only be allowed through a specific law.
VIII
Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the
requirement set by paragraph 4 of Article XII, Section 2 for service contracts involving the
exploration of petroleum. SC-46 was entered into by then Department of Energy Secretary Vicente
S. Perez, Jr., on behalf of the government. I agree with the Main Opinion that in cases where the
Constitution or law requires the President to act personally on the matter, the duty cannot be
delegated to another public official.41 La Bugal highlights the importance of the President's
involvement, being one of the constitutional safeguards against abuse and corruption, as not mere
formality:
At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:
In their deliberations on what was to become paragraph 4, the framers used the term
service contracts in referring to agreements x x x involving either technical or financial
assistance. They spoke of service contracts as the concept was understood in the
1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicate
service contracts.
Instead, they were plainly crafting provisions to. put in place safeguards that would
eliminate or m minimize the abuses prevalent during the marital law
regime.42 (Emphasis in the original)
Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved in
the signing or execution of SC-46. The failure to comply with this constitutional requirement renders
SC-46 null and void.
IX
Public respondents also failed to show that Congress was subsequently informed of the execution
and existence of SC-46. The reporting requirement is an equally important requisite to the validity of
any service contract involving the exploration, development, and utilization of Philippine petroleum.
Public respondents' failure to report to Congress about SC-46 effectively took away any opportunity
for the legislative branch to scrutinize its terms and conditions.
In sum, SC-46 was executed and implemented absent all the requirements provided under
paragraph 4 of Article XII, Section 2. It is, therefore, null and void.
X general elections held on May 10, 2010. Petitioner Atty. Evillo C. Pormento opposed private
I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also null
and void for being violative of environmental laws protecting Taon Strait. In particular, SC-46 was
implemented despite falling short of the requirements of the National Integrated Protected Areas
System Act of 1992.
As a protected seascape under Presidential Decree No. 1234, 43 Taon Strait is covered by the
National Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:
SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the environment notably on areas with
biologically unique features to sustain human life and development, as well as plant and animal life,
it is hereby declared the policy of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas within the classification of national park as
provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological
values that may be incorporated into a holistic plan representative of our natural heritage; that
effective administration of these areas is possible only through cooperation among national
government, local and concerned private organizations; that the use and enjoyment of these
protected areas must be consistent with the principles of biological diversity and sustainable
development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstanding remarkable areas and biologically important public lands that
are habitats of rare and endangered species of plants and animals, biogeographic zones and
related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as
"protected areas."44 (Emphasis supplied)
Pursuant to this law, any proposed activity in Taon Strait must undergo an Environmental Impact
Assessment:
SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope
of the management plan for protected areas shall be subject to an environmental impact
assessment as required by law before they are adopted, and the results thereof shall be taken into
consideration in the decision-making process.45(Emphasis supplied)
The same provision further requires that an Environmental Compliance Certificate be secured under
the Philippine Environmental Impact Assessment System before arty project is implemented:
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system.
In instances where such activities are allowed to be undertaken, the proponent shall plan and carry
them out in such manner as will minimize any adverse effects and take preventive and remedial
action when appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.46 (Emphasis supplied)
In projects involving the exploration or utilization of energy resources, the National Integrated
Protected Areas System Act of 1992 additionally requires that a program be approved by the
Department of Environment and Natural Resources, which shall be publicly accessible. The
program shall also be submitted to the President, who in turn will recommend the program to
Congress. Furthermore, Congress must enact a law specifically allowing the exploitation of energy
resources found within a protected area such as Taon Strait:
SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIPAS areas shall be allowed only through a taw passed
by Congress.47 (Emphasis supplied)
Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by SC-46
fell under Section 14 of the National Integrated Protected Areas System Act of 1992, which they
interpret to be an exception to Section 12. They argue that the Environmental Compliance
Certificate is not a strict requirement for the validity of SC-46 since (a) the Taon Strait is not a
nature' reserve or natural park; (b) the exploration was merely for gathering information; and ( c)
measures were in place to ensure that the exploration caused the least possible damage to the
area.49
Section 14 is not an exception to Section 12, but instead provides additional requirements for cases
involving Philippine energy resources. The National Integrated Protected Areas System Act of 1992
was enacted to recognize the importance of protecting the environment in light of resource
exploitation, among others.50 Systems are put in place to secure for Filipinos local resources under
the most favorable conditions. With the status of Taon Strait as a protected seascape, the
institution of additional legal safeguards is even more significant.
Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46. Based
on the records, JAPEX commissioned an environmental impact evaluation only in the second
subphase of its project, with the Environmental Management .Bureau of Region
VII granting the project an Environmental Compliance Certificate on March 6, 2007. 51
Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any
environmental assessment contrary to Section 12 of the National Integrated Protected Areas
System Act of 1992.
XI
Finally, we honor every living creature when we take care of our environment. As sentient species,
we do not lack in the wisdom or sensitivity to realize that we only borrow the resources that we use
to survive and to thrive. We are not incapable of mitigating the greed that is slowly causing the
demise of our planet. Thus, there is no need for us to feign representation of any other species or
some imagined unborn generation in filing any action in our courts of law to claim any of our
fundamental rights to a healthful ecology. In this way and with candor and courage, we fully
shoulder the responsibility deserving of the grace and power endowed on our species.
ACCORDINGLY, I vote:
(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of
Former President Gloria Macapagal-Arroyo from the title of this case;
(b) to GRANT G.R. No. 181527; and
(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987
Constitution, Republic Act No. 7586, and Presidential Decree No. 1234.
G.R. No. 191988 August 31, 2010
ATTY. EVILLO C. PORMENTO, Petitioner,
vs.
JOSEPH "ERAP" EJERCITO ESTRADA and COMMISSION ON ELECTIONS, Respondents.
RESOLUTION
CORONA, C.J.:
What is the proper interpretation of the following provision of Section 4, Article VII of the
Constitution: "[t]he President shall not be eligible for any reelection?"
The novelty and complexity of the constitutional issue involved in this case present a temptation that
magistrates, lawyers, legal scholars and law students alike would find hard to resist. However,
prudence dictates that this Court exercise judicial restraint where the issue before it has already
been mooted by subsequent events. More importantly, the constitutional requirement of the
existence of a "case" or an "actual controversy" for the proper exercise of the power of judicial
review constrains us to refuse the allure of making a grand pronouncement that, in the end, will
amount to nothing but a non-binding opinion.
The petition asks whether private respondent Joseph Ejercito Estrada is covered by the ban on the
President from "any reelection." Private respondent was elected President of the Republic of the
Philippines in the general elections held on May 11, 1998. He sought the presidency again in the
respondents candidacy and filed a petition for disqualification. However, his petition was denied by
the Second Division of public respondent Commission on Elections (COMELEC). 1 His motion for
reconsideration was subsequently denied by the COMELEC en banc. 2
Petitioner filed the instant petition for certiorari3 on May 7, 2010. However, under the Rules of Court,
the filing of such petition would not stay the execution of the judgment, final order or resolution of the
COMELEC that is sought to be reviewed.4 Besides, petitioner did not even pray for the issuance of a
temporary restraining order or writ of preliminary injunction. Hence, private respondent was able to
participate as a candidate for the position of President in the May 10, 2010 elections where he
garnered the second highest number of votes.51avvphi1
Private respondent was not elected President the second time he ran. Since the issue on the proper
interpretation of the phrase "any reelection" will be premised on a persons second (whether
immediate or not) election as President, there is no case or controversy to be resolved in this case.
No live conflict of legal rights exists.6 There is in this case no definite, concrete, real or substantial
controversy that touches on the legal relations of parties having adverse legal interests. 7 No specific
relief may conclusively be decreed upon by this Court in this case that will benefit any of the parties
herein.8 As such, one of the essential requisites for the exercise of the power of judicial review, the
existence of an actual case or controversy, is sorely lacking in this case.
As a rule, this Court may only adjudicate actual, ongoing controversies. 9 The Court is not
empowered to decide moot questions or abstract propositions, or to declare principles or rules of
law which cannot affect the result as to the thing in issue in the case before it. 10 In other words,
when a case is moot, it becomes non-justiciable.11
An action is considered "moot" when it no longer presents a justiciable controversy because the
issues involved have become academic or dead or when the matter in dispute has already been
resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised
again between the parties. There is nothing for the court to resolve as the determination thereof has
been overtaken by subsequent events.12
Assuming an actual case or controversy existed prior to the proclamation of a President who has
been duly elected in the May 10, 2010 elections, the same is no longer true today. Following the
results of that elections, private respondent was not elected President for the second time. Thus,
any discussion of his "reelection" will simply be hypothetical and speculative. It will serve no useful
or practical purpose.
Accordingly, the petition is denied due course and is hereby DISMISSED.
SO ORDERED.
G.R. No. 179267 June 25, 2013
JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41,
Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million adhering to the teachings of Jesus Christ.1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that,
for the years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004. 4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women
and their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband;
or any person who has or had a sexual or dating relationship, or with whom the woman has a
common child.5 The law provides for protection orders from the barangay and the courts to prevent
the commission of further acts of VAWC; and outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court personnel, social workers, health care providers, and
other local government officials in responding to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of
the equal protection and due process clauses, and an undue delegation of judicial power to
barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her
minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus
C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse;
emotional, psychological, and economic violence as a result of marital infidelity on the part of
petitioner, with threats of deprivation of custody of her children and of financial support. 7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the former was
eleven years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who
is the natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6
years old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling,
and demands absolute obedience from his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took up law, and even when she was
already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her
to just stay at home. He was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her killed. 9
Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's
Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even boasted to the household help about
his sexual relations with said bank manager. Petitioner told private respondent, though, that he was
just using the woman because of their accounts with the bank. 10
Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both arms
and shook her with such force that caused bruises and hematoma. At another time, petitioner hit
private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom
he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the
latter leaves, petitioner would beat her up. Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of
his cruelty to private respondent.11
All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days in which time petitioner never
bothered to visit, nor apologized or showed pity on her. Since then, private respondent has been
undergoing therapy almost every week and is taking anti-depressant medications.12
When private respondent informed the management of Robinson's Bank that she intends to file
charges against the bank manager, petitioner got angry with her for jeopardizing the manager's job.
He then packed his things and told private respondent that he was leaving her for good. He even
told private respondent's mother, who lives with them in the family home, that private respondent
should just accept his extramarital affair since he is not cohabiting with his paramour and has not
sired a child with her.13
Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not get a single centavo. 14
Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-
Bros Trading Corporation of which he and private respondent are both stockholders. In contrast to
the absolute control of petitioner over said corporations, private respondent merely draws a monthly
salary of 20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household
expenses amounting to not less than 200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same corporation together with the
bills for utilities.15
On the other hand, petitioner receives a monthly salary of 60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of
pesos from the corporations.16 After private respondent confronted him about the affair, petitioner
forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an
accounting of the businesses the value of which she had helped raise to millions of pesos. 17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO 18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal dwelling or family
home within 24 hours from receipt of the Temporary Restraining Order and if he
refuses, ordering that he be removed by police officers from the conjugal dwelling; this
order is enforceable notwithstanding that the house is under the name of 236 Realty
Holdings Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to allow
the Petitioner (private respondent herein) to enter the conjugal dwelling without any
danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner
shall be assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26
March 2006 because of the danger that the Respondent will attempt to take her
children from her when he arrives from Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her household
help and driver from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the
Petitioner, directly or indirectly, or through other persons, or contact directly or
indirectly her children, mother and household help, nor send gifts, cards, flowers,
letters and the like. Visitation rights to the children may be subject of a modified TPO
in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK
and ordering the Philippine National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the Respondent's firearm licenses. He
should also be ordered to surrender any unlicensed firearms in his possession or
control.
e) To pay full financial support for the Petitioner and the children, including rental of a
house for them, and educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other cash he
received from all the corporations from 1 January 2006 up to 31 March 2006, which
himself and as President of the corporations and his Comptroller, must submit to the
Court not later than 2 April 2006. Thereafter, an accounting of all these funds shall be
reported to the court by the Comptroller, copy furnished to the Petitioner, every 15
days of the month, under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the
Petitioner sues she will not get a single centavo, the Respondent is ordered to put up a
BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two
sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the trial court issued an
amended TPO,20 effective for thirty (30) days, which included the following additional
provisions:
i) The petitioners (private respondents herein) are given the continued use of the
Nissan Patrol and the Starex Van which they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the house in
Paraaque, the continued use of the Starex van in Metro Manila, whenever they go to
Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in two
sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One
Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of
Fifty Thousand Pesos (Php 50,000.00) per month until the matter of support could be
finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the
TPO be modified by (1) removing one vehicle used by private respondent and returning the same to
its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the
bond from 5,000,000.00 to a more manageable level at 100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other personal belongings
of Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24
hours from receipt of the Temporary Protection Order by his counsel, otherwise be
declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the
conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours
from receipt of the Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of
the Temporary Protection Order by his counsel, and that he cannot return until 48
hours after the petitioners have left, so that the petitioner Rosalie and her
representatives can remove things from the conjugal home and make an inventory of
the household furniture, equipment and other things in the conjugal home, which shall
be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from
receipt of the Temporary Protection Order by his counsel, otherwise be declared in
indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk
of Court within 24 hours from receipt of the Temporary Protection Order by his
counsel;
f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses. 23
Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent
filed another application24 for the issuance of a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter
was purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex
Van used by private respondent and the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long firearms that scared the two small boys,
Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or through another,
acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise
communicating in any form with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends, relatives, employees or
agents, from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's
three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo
Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and the
petitioner's other household helpers from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioners are temporarily residing, as well
as from the schools of the three children; Furthermore, that respondent shall not
contact the schools of the children directly or indirectly in any manner including,
ostensibly to pay for their tuition or other fees directly, otherwise he will have access to
the children through the schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther
PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and
Php50,000.00 for rental for the period from August 6 to September 6, 2006; and
support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount of
Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and
a Starex van with Plate No. FFD 991 and should the respondent fail to deliver said
vehicles, respondent is ordered to provide the petitioner another vehicle which is the
one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the
conjugal assets, or those real properties in the name of Jesus Chua Garcia only and
those in which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and
respondent have an interest in, especially the conjugal home located in No. 14,
Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which are
conjugal assets or those in which the conjugal partnership of gains of Petitioner
Rosalie J. Garcia and the respondent have an interest in and listed in Annexes "I," "I-
1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be
served a copy of this TEMPORARY PROTECTION ORDER and are ordered not to
allow the transfer, sale, encumbrance or disposition of these above-cited properties to
any person, entity or corporation without the personal presence of petitioner Rosalie J.
Garcia, who shall affix her signature in the presence of the Register of Deeds, due to
the fear of petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal partnership of
gains.
In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's manifestation,30 however, that he
has not received a copy of private respondent's motion to modify/renew the TPO, the trial court
directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days
and continuously extended and renewed for thirty (30) days, after each expiration, until further
orders, and subject to such modifications as may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil
case for being "an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against
the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed 36 the petition for failure
of petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case,
which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the
trial court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE
LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT
R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the constitutionality of R.A.
9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition for
prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.39 Courts will not anticipate a question of constitutional law
in advance of the necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear and decide cases of domestic violence against
women and children.42 In accordance with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides
that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction
over cases of VAWC defined under the latter law, viz:
SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In the
absence of such court in the place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority
as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency. 44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law." 46The Constitution vests the power
of judicial review or the power to declare the constitutionality or validity of a law, treaty, international
or executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in
this Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the
Constitution contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior
courts in cases where such constitutionality happens to be in issue." Section 5, Article VIII of the
1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have
been raised at the earliest opportunity in his Opposition to the petition for protection order before the
RTC of Bacolod City, which had jurisdiction to determine the same, subject to the review of this
Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays
down a new kind of procedure requiring the respondent to file an opposition to the petition and not
an answer.49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why
a temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party. 50 A cross-claim, on the other hand, is any
claim by one party against a co-party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein. 51Finally, a third-party complaint is a
claim that a defending party may, with leave of court, file against a person not a party to the action
for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.52As
pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in view of the familiar maxim
expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the
right of private respondent to a protection order is founded solely on the very statute the validity of
which is being attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid
cause for the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by evidence.54 Be that as it may, Section
25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues,
among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it
may issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be
presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the
form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be done in
one day, to the extent possible, within the 30-day period of the effectivity of the
temporary protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the said order for a period of thirty (30)
days each time until final judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the parties. With the private
respondent given ample protection, petitioner could proceed to litigate the constitutional issues,
without necessarily running afoul of the very purpose for the adoption of the rules on summary
procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner
may have proceeded upon an honest belief that if he finds succor in a superior court, he could be
granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the
filing of a petition for certiorari, mandamus or prohibition against any interlocutory order issued by
the trial court. Hence, the 60-day TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders pursuant thereto was improper, and it
effectively hindered the case from taking its normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a
time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United
States declared, thus:
Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)
The sole objective of injunctions is to preserve the status quo until the trial court hears fully the
merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to
protect women and their children from acts of violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again,
discharged our solemn duty as final arbiter of constitutional issues, and with more reason now, in
view of private respondent's plea in her Comment 59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child
abuse, which could very well be committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized measure" 62 an amalgamation of
two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 providing protection to "all family members, leaving no one in isolation" but at
the same time giving special attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same
measure. We quote pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence
apart from against women as well as other members of the household, including children or the
husband, they fear that this would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good Senator respond to this kind
of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want to include men in this domestic violence. But
plenty of men are also being abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for victims. This includes
the men, children, live-in, common-law wives, and those related with the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion whether to limit this to women
and not to families which was the issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity
to file a case against their spouses, their live-in partners after years, if not decade, of battery and
abuse. If we broaden the scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult situation for women, Mr.
President.
I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to
the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because
the family members have been included in this proposed measure since the other members of the
family other than women are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on women, the fact remains that
in some relatively few cases, men also stand to be victimized and that children are almost always
the helpless victims of violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the same protection to men, fearing
that they may use this law to justify their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in
our society, I believe we have an obligation to uphold inherent rights and dignity of both husband
and wife and their immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other family members as a
critical input arrived at after a series of consultations/meetings with various NGOs, experts, sports
groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That
will be the net effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined
to accept the proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the children are very much abused. As a matter of fact, it is
not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-
year-old children being abused by their fathers, even by their mothers. And it breaks my heart to find
out about these things.
Because of the inadequate existing law on abuse of children, this particular measure will update
that. It will enhance and hopefully prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but
not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in this proceeding. Congress
has made its choice and it is not our prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the legislative that determines the
necessity, adequacy, wisdom and expediency of any law. 68 We only step in when there is a violation
of the Constitution. However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law,
as in the other departments of knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences; that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. (Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection
clause by favoring women over men as victims of violence and abuse to whom the State extends its
protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that women are more likely than
men to be victims of violence; and the widespread gender bias and prejudice against women all
make for real differences justifying the classification under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ... is the essence of true equality." 70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National Machinery for Gender Equality
and Women's Empowerment), violence against women (VAW) is deemed to be closely linked with
the unequal power relationship between women and men otherwise known as "gender-based
violence". Societal norms and traditions dictate people to think men are the leaders, pursuers,
providers, and take on dominant roles in society while women are nurturers, men's companions and
supporters, and take on subordinate roles in society. This perception leads to men gaining more
power over women. With power comes the need to control to retain that power. And VAW is a form
of men's expression of controlling women to retain power. 71
The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating
that "violence against women is a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination against women by men and to
the prevention of the full advancement of women, and that violence against women is one of the
crucial social mechanisms by which women are forced into subordinate positions, compared with
men."72
Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent
portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the
early studies:
Traditions subordinating women have a long history rooted in patriarchy the institutional rule of
men. Women were seen in virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the
authority of men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards
the patriarchal family strengthened the male dominated structure of society.
English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to
limit the right of husbands to chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women.
The metamorphosis of the law on violence in the United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her,
spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.
As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as
the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by suffragette
movements, expanding the liberation movement's agenda. They fought for women's right to vote, to
own property, and more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to the public gaze.
They succeeded in transforming the issue into an important public concern. No less than the United
States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The [American Medical Association]
views these figures as "marked underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four million severely assaulted women
per year."
Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the United
States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents
involve sexual assault... In families where wife beating takes place, moreover, child abuse is often
present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also
common.
Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative...Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.
Finally in 1994, the United States Congress enacted the Violence Against Women Act.
In the International front, the women's struggle for equality was no less successful. The United
States Charter and the Universal Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World conferences on the
role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing.
The UN itself established a Commission on the Status of Women.
The Philippines has been in cadence with the half and full steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the fundamental equality before the
law of women and men. Our Senate has ratified the CEDAW as well as the Convention on the
Rights of the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep.
Act No. 9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties therefor and for other Purposes." (Citations
omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women The ordinance was upheld as a valid classification for the reason that, while there may be non-
and children show that vehicle-drawing animals that also traverse the city roads, "but their number must be negligible and
x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of their appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a
total cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out menace to the health of the community."77 The mere fact that the legislative classification may result
of 4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult in actual inequality is not violative of the right to equal protection, for every classification of persons
circumstances served by the Department of Social Welfare and Development (DSWD) for the year or things for regulation by law produces inequality in some degree, but the law is not thereby
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx rendered invalid.78
(T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003. C. Gender bias and prejudices
Female violence comprised more than 90% of all forms of abuse and violence and more than 90% From the initial report to the police through prosecution, trial, and sentencing, crimes against women
of these reported cases were committed by the women's intimate partners such as their husbands are often treated differently and less seriously than other crimes. This was argued by then United
and live-in partners.73 States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against
Recently, the Philippine Commission on Women presented comparative statistics on violence Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress'
against women across an eight-year period from 2004 to August of 2011 with violations under R.A. authority under the Commerce and Equal Protection Clauses. He stressed that the widespread
9262 ranking first among the different VAW categories since its implementation in 2004, 74 thus: gender bias in the U.S. has institutionalized historic prejudices against victims of rape or domestic
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011* violence, subjecting them to "double victimization" first at the hands of the offender and then of the
legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
2004 2005 2006 2007 2008 2009 2010 "(w)henever2011violence occurs in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and
often serious nature of domestic violence."80
997 927 659 837 811 770 1,042 Sadly, our own 832courts, as well, have exhibited prejudices and biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner"
and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila
38 46 26 22 28 27 19 even called her 23a "prostitute," and accused her of being motivated by "insatiable greed" and of
absconding with the contested property.81 Such remarks betrayed Judge Amila's prejudices and lack
of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
194 148 185 147 204 167 268 prejudices against
201 women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific measures
focused on women does not discriminate against men. 82Petitioner's contention,83 therefore, that
R.A. 9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law
deserves scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take
580 536 382 358 445 485 745 all appropriate625measures "to modify the social and cultural patterns of conduct of men and women,
with a view to achieving the elimination of prejudices and customary and all other practices which
are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped
roles for men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing
the character of domestic violence from a private affair to a public offense will require the
development of a distinct mindset on the part of the police, the prosecution and the judges." 85
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of Policy, as
follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity of women and
53 37 38 46 18 54 83 children and guarantees
63 full respect for human rights. The State also recognizes the need to protect
the family and its members particularly women and children, from violence and threats to their
personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
218 924 1,269 2,387 3,599 5,285 9,974 provisions 9,021
of the Universal Declaration of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August
5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on
319 223 199 182 220 208 374 213 86 This Convention mandates that State parties shall accord to women equality with
October 6, 2003.
men before the law87 and shall take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two
62 19 29 30 19 19 25 protocols.89 It 15
is, thus, bound by said Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women and
121 102 93 109 109 99 158 their children128
are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3
thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman who is his wife, former
17 11 16 24 34 152 190 wife, or against 62a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or illegitimate, within or
without the family abode, which result in or is likely to result in physical, sexual, psychological harm
or suffering, or economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:
16 34 23 28 18 25 22 A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her
child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or
her child as a sex object, making demeaning and sexually suggestive
90 50 59 59 83 703 183 155 remarks, physically attacking the sexual parts of the victim's body,
forcing her/him to watch obscene publications and indecent shows or
forcing the woman or her child to do indecent acts and/or make films
thereof, forcing the wife and mistress/lover to live in the conjugal home or
sleep together in the same room with the abuser;
6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948
b) acts causing or attempting to cause the victim to engage in any sexual
activity by force, threat of force, physical or other harm or threat of
*2011 report covers only from January to August physical or other harm or coercion;
Source: Philippine National Police Women and Children Protection Center (WCPC) c) Prostituting the woman or child.
On the other hand, no reliable estimates may be obtained on domestic abuse and violence against C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or
men in the Philippines because incidents thereof are relatively low and, perhaps, because many emotional suffering of the victim such as but not limited to intimidation, harassment, stalking,
men will not even attempt to report the situation. In the United Kingdom, 32% of women who had damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It
ever experienced domestic violence did so four or five (or more) times, compared with 11% of the includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a
smaller number of men who had ever experienced domestic violence; and women constituted 89% member of the family to which the victim belongs, or to witness pornography in any form or to
of all those who had experienced 4 or more incidents of domestic violence. 75Statistics in Canada witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or
show that spousal violence by a woman against a man is less likely to cause injury than the other visitation of common children.
way around (18 percent versus 44 percent). Men, who experience violence from their spouses are D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent
much less likely to live in fear of violence at the hands of their spouses, and much less likely to which includes, but is not limited to the following:
experience sexual assault. In fact, many cases of physical violence by a woman against a spouse 1. withdrawal of financial support or preventing the victim from engaging
are in self-defense or the result of many years of physical or emotional abuse. 76 in any legitimate profession, occupation, business or activity, except in
While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the cases wherein the other spouse/partner objects on valid, serious and
Philippines, the same cannot render R.A. 9262 invalid. moral grounds as defined in Article 73 of the Family Code;
In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles 2. deprivation or threat of deprivation of financial resources and the right
to pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicle- to the use and enjoyment of the conjugal, community or property owned
drawing animals in any public highways, streets, plazas, parks or alleys, said ordinance was in common;
challenged as violative of the guaranty of equal protection of laws as its application is limited to 3. destroying household property;
owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but 4. controlling the victims' own money or properties or solely controlling
similarly pass through the same streets. the conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are attributable to
research that has exposed the dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence Against Women.90 Hence, the
argument advanced by petitioner that the definition of what constitutes abuse removes the
difference between violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner
in his defense. The acts enumerated above are easily understood and provide adequate contrast
between the innocent and the prohibited acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited, and need not guess at
its meaning nor differ in its application.91 Yet, petitioner insists92that phrases like "depriving or
threatening to deprive the woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or emotional anguish" are so
vague that they make every quarrel a case of spousal abuse. However, we have stressed that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld
not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be committed "against a woman with whom the
person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word
"person" who has or had a sexual or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of
Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be
proper respondents in the case filed by the latter upon the allegation that they and their son (Go-
Tan's husband) had community of design and purpose in tormenting her by giving her insufficient
financial support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened."95
A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life. 96
"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent their abduction
by the perpetrator and to ensure their financial support." 97
The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be prevented," 99 the court is
authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable ground to believe that the order is
necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent
such violence, which is about to recur.100
There need not be any fear that the judge may have no rational basis to issue an ex parte order.
The victim is required not only to verify the allegations in the petition, but also to attach her
witnesses' affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due
process. Just like a writ of preliminary attachment which is issued without notice and hearing
because the time in which the hearing will take could be enough to enable the defendant to abscond
or dispose of his property,102 in the same way, the victim of VAWC may already have suffered
harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing
were required before such acts could be prevented. It is a constitutional commonplace that the
ordinary requirements of procedural due process must yield to the necessities of protecting vital
public interests,103among which is protection of women and children from violence and threats to
their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition within five
(5) days from service. The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105
The opposition to the petition which the respondent himself shall verify, must be accompanied by
the affidavits of witnesses and shall show cause why a temporary or permanent protection order
should not be issued.106
It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the
fear of petitioner of being "stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an inkling of what happened" is a
mere product of an overactive imagination. The essence of due process is to be found in the
reasonable opportunity to be heard and submit any evidence one may have in support of one's
defense. "To be heard" does not only mean verbal arguments in court; one may be heard also
through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow him visitation
rights to his children. Still, the trial court in its Order dated September 26, 2006, gave him five days
(5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not
to file the required comment arguing that it would just be an "exercise in futility," conveniently
forgetting that the renewal of the questioned TPO was only for a limited period (30 days) each time,
and that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied
due process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from
the residence of the victim, regardless of ownership of the residence, is virtually a "blank check"
issued to the wife to claim any property as her conjugal home. 108
The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that
this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or
all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent to
the residence, remain there until the respondent has gathered his things and escort him from the
residence;
xxxx
Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal and
exclusion may be permanent only where no property rights are violated. How then can the private
respondent just claim any property and appropriate it for herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the avowed policy of the State to "protect and
strengthen the family as a basic autonomous social institution." 109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof
to a mediator. The reason behind this provision is well-explained by the Commentary on Section
311 of the Model Code on Domestic and Family Violence as follows:110
This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject
for compromise. A process which involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection
is problematic because the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established
by law" and, thus, protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a) and (b) of this Act.1wphi1 A Punong Barangay
who receives applications for a BPO shall issue the protection order to the applicant on the date of
filing after ex parte determination of the basis of the application. If the Punong Barangay is
unavailable to act on the application for a BPO, the application shall be acted upon by any available
Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied
by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time
of the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the
issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a
copy of the same on the respondent, or direct any barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other hand, executive power "is generally defined as
the power to enforce and administer the laws. It is the power of carrying the laws into practical
operation and enforcing their due observance." 113
As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her
child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and
to "maintain public order in the barangay." 114
We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of
certain facts and to apply the law thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an exercise of judicial powers." 115
In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the
accused is probably guilty thereof," the Punong Barangay must determine reasonable ground to
believe that an imminent danger of violence against the woman and her children exists or is about to
recur that would necessitate the issuance of a BPO. The preliminary investigation conducted by the
prosecutor is, concededly, an executive, not a judicial, function. The same holds true with the
issuance of a BPO.
We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would
be very unlikely that they would remain objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and other law enforcement agencies is
consistent with their duty to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality
of R.A. 9262, which is an act of Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with
full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare
of the majority.
We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of
law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.
SO ORDERED.
G.R. No. 187836 November 25, 2014
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS, NAMELY, SAMSON S. ALCANTARA, and
VLADIMIR ALARIQUE T. CABIGAO, Petitioners,
vs.
ALFREDO S. LIM, in his capacity as mayor of the City of Manila, Respondent.
x-----------------------x
DECISION
PEREZ, J.:
Challenged in these consolidated petitions is the validity of Ordinance No. 81873 entitled "AN
2
ORDINANCE AMENDING ORDINANCE NO. 8119, OTHERWISE KNOWN AS THE MANILA
COMPREHENSIVE LAND USE PLAN AND ZONING ORDINANCE OF 2006, BY CREATING A
MEDIUM INDUSTRIAL ZONE (1-2) AND HEAVY INDUSTRIAL ZONE (1-3), AND PROVIDING FOR
ITS ENFORCEMENT" enacted by the Sangguniang Panlungsod of Manila (Sangguniang
Panlungsod) on 14 May 2009.
The creation of a medium industrial zone (1-2) and heavy industrial zone (1-3) effectively lifted the
prohibition against owners and operators of businesses, including herein intervenors Chevron
Philippines, Inc. (Chevron), Pilipinas Shell Petroleum Corporation (Shell), and Petron Corporation
(Petron), collectively referred to as the oil companies, from operating in the designated commercial
zone an industrial zone prior to the enactment of Ordinance No. 80274 entitled "AN ORDINANCE
RECLASSIFYING THE LAND USE OF THAT PORTION OF LAND BOUNDED BY THE
 PASIGRIVER IN THE NORTH, PNR RAILROAD TRACK IN THE EAST, BEATA ST. IN THE Highlighting that the Court has soruled that the Pandacan oil depots should leave, herein petitioners
SOUTH, PALUMPONG ST. IN THE SOUTHWEST AND ESTERO DE PANDACAN IN THE WEST, now seek the nullification of Ordinance No. 8187, which contains provisions contrary to those
PNR RAILROAD IN THE NORTHWEST AREA, ESTERO DE PANDACAN IN THE NORTHEAST, embodied in Ordinance No. 8027. Allegations of violation of the right to health and the right to a
PASIG RIVER IN THE SOUTHEAST AND DR. M. L. CARREON IN THE SOUTHWEST, THE AREA healthful and balanced environment are also included.
OF PUNTA, STA.ANA BOUNDED BY THE PASIG RIVER, MARCELINO OBRERO ST., MAYO 28 For a better perspective of the facts of these cases, we again trace the history of the Pandacan oil
ST. AND THE F. MANALO STREET FROM INDUSTRIAL II TO COMMERCIAL I," and Ordinance terminals, aswell as the intervening events prior to the reclassification of the land use from Industrial
No. 81195 entitled "AN ORDINANCE ADOPTING THE MANILA COMPREHENSIVE LAND USE II to Commercial I under Ordinance No. 8027 until the creation of Medium Industrial Zone and
PLAN AND ZONING REGULATIONS OF 2006 AND PROVIDING FOR THE ADMINISTRATION, Heavy Industrial Zone pursuant to Ordinance No. 8187.
ENFORCEMENT AND AMENDMENT THERETO." History of the Pandacan
The Parties Oil Terminals
Petitioners allege the parties respective capacity to sue and be sued, viz: We quote the following from the Resolution of the Court in G.R. No. 156052:
Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig [R]iver.
Petitioners Residence Suing capacity aside from being residents of Manila other
Atthe turn of the twentieth century, Pandacan was unofficially designated as the industrial center of
in Manila personal circumstances
Manila. The area, then largely uninhabited, was ideal for various emerging industries as the nearby
G.R. No. 187836 river facilitated the transportation of goods and products. In the 1920s, it was classifiedas an
industrial zone. Among its early industrial settlers werethe oil companies. x x x On December 8,
Alcantara Not mentioned in the petition; Manila taxpayer; 1941, the Second World War reached the shores of the Philippine Islands. x x x [I]n their zealous
holding office in Ermita, Manila One of the petitioners in SJS v. Atienza (G.R.attempt
No. 156052);*
to fend off the Japanese Imperial Army, the United States Army took control of the
Pesident of ABAKADA GURO Pandacan Terminals and hastily made plans to destroy the storage facilities to deprive the
PARTY LIST with members who advancing Japanese Army of a valuable logistics weapon. The U.S. Army burned unused
are residents of the City of Manila petroleum, causing a frightening conflagration. Historian Nick Joaquin recounted the events as
follows:
ique T. Cabigao (Cabigao) Pandacan One of the petitioners in SJS v. Atienza (G.R.After
No. 156052)
the USAFFE evacuated the City late in December 1941, all army fuel storage dumps were set
* The allegation is inaccurate. SJS Officer Alcantara is actually one of the counsels for petitioner on fire. The flames spread, enveloping the City in smoke, setting even the rivers ablaze,
SJS in G.R. No. 156052. The petitioners in that case are the SJS itself, Cabigao and Bonifacio S. endangering bridges and all riverside buildings. For one week longer, the "open city" blazeda
Tumbokon (Tumbokon). cloud of smoke by day, a pillar of fire by night.
G.R. No. 187916 The fire consequently destroyed the Pandacan Terminals and rendered its network of depots and
service stations inoperative.
ienza, Jr. (Mayor Atienza) San Andres Former Mayor of Manila; After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself. The
Secretary of Department of three major oil companies resumed the operation of their depots. But the district was no longer a
Environment and Natural sparsely populated industrial zone; it had evolved into a bustling, hodgepodge community. Today,
Resources (DENR) Pandacan has become a densely populated area inhabited by about 84,000 people, majority of
whom are urban poor who call it home. Aside from numerous industrial installations, there are also
Sta. Ana Citizen and taxpayer; small businesses, churches, restaurants, schools, daycare centers and residences situated there.
member of the House of Malacaang Palace, the official residence of the President of the Philippines and the seat of
Representatives governmental power, is just two kilometers away. There is a private school near the Petron depot.
Along the walls of the Shell facility are shanties of informal settlers. More than 15,000 students are
cia San Miguel Incumbent City Councilor of the enrolled in elementary and high schools situated near these facilities. A university with a student
City of Manila population of about 25,000 is located directly across the depot on the banks of the Pasig [R]iver.
The 36-hectare Pandacan Terminals house the oil companies distribution terminals and depot
Paco Incumbent City Councilor of the facilities.1wphi1 The refineries of Chevron and Shell in Tabangao and Bauan, both in Batangas,
City of Manila respectively, are connected to the Pandacan Terminals through a 114-kilometer underground
pipeline system. Petrons refinery in Limay, Bataan, on the other hand, also services the depot. The
Sta. Mesa Incumbent City Councilor of the terminals store fuel and other petroleum products and supply 95% of the fuel requirements of Metro
City of Manila Manila, 50% of Luzons consumption and 35% nationwide. Fuel can also be transported through
barges along the Pasig [R]iver ortank trucks via the South Luzon Expressway. 13 (Citations omitted)
Taran, Macalia Ricci B. Taran, Richard Paco Citizens, real estate owners and Memorandum of Agreement (MOA)
sented and joined by their parents taxpayers dated 12 October 2001 between the oil companies
an and the Department of Energy (DOE)
On 12 October 2001, the oil companies and the DOE entered into a MOA14 "in light of recent
a C. Ramos, Cezarah Adrianna C. Tondo Citizens, real estate owners and international developments involving acts of terrorism on civilian and government
an C. Ramos represented and joined by taxpayers landmarks,"15 "potential new security risks relating to the Pandacan oil terminals and the impact on
amos the surrounding community which may be affected," 16 and "to address the perceived risks posed by
the proximity of communities, businesses and offices to the Pandacan oil terminals, consistent with
Vila and Antonio T. Cruz IV, Sta. Ana Citizens, real estate owners and the principle of sustainable development."17 The stakeholders acknowledged that "there is a need
y their mother Maureen C. Tolentino taxpayers for a comprehensive study to address the economic, social, environmental and security concerns
with the end in view of formulating a Master Plan to address and minimize the potential risks and
hazards posed by the proximity of communities, businesses and offices to the Pandacan oil
terminals without adversely affecting the security and reliability of supply and distribution of
Respondents Sued in their capacity as
petroleum products to Metro Manila and the rest of Luzon, and the interests of consumers and users
G.R. Nos. 187836 and 187916 of such petroleum products in those areas." 18
The enactment of Ordinance No. 8027
Lim (Mayor Lim) Incumbent Mayor of Manila at against the continued stay of the oil depots
the time of the filing of the The MOA, however, was short-lived.
present petitions On 20 November 2001, during the incumbency of former Mayor Jose L. Atienza, Jr. (Mayor Atienza)
nowone of the petitioners in G.R. No. 187916 the Sangguniang Panlungsod enacted Ordinance
No. 802719 reclassifying the use of the land in Pandacan, Sta. Ana, and its adjoining areas from
Respondents Sued in their capacity as Industrial II to Commercial I.
The owners and operators of the businesses thus affected by the reclassification were given six
months from the date of effectivity of the Ordinance within which to stop the operation of their
G.R. No. 187916 businesses.
Nevertheless, the oil companies weregranted an extension of until 30 April 2003 within which to
omagoso (Vice-Mayor Vice-Mayor and Presiding Officer comply with the Ordinance pursuant to the following:
of the City Council of Manila (1) Memorandum of Understanding (MOU) 20 dated 26 June 2002 between the City of
Manila and the Department of Energy (DOE), on the one hand, and the oil companies,
Principal author of City on the other, where the parties agreed that "the scaling down of the Pandacan
Ordinance No. 8187 Terminals [was] the most viable and practicable option" 21 and committed to adopt
specific measures22 consistent with the said objective;
ardo, Louisito N. Chua, Victoriano A. Melendez, John Marvin Nieto, Personal and official capacities as councilors who voted and (2) Resolution No. 97 dated 25 July 200223 of the Sangguniang Panlungsod, which
aymondo R. Yupangco, Edward VP Maceda, Roderick D. Valbuena, approved City Ordinance No. 8187 ratified the 26 June 2002 MOU but limited the extension of the period within which to
p H. Lacuna, Luciano M. Veloso, Carlo V. Lopez, Ernesto F. comply to six months from 25 July 2002; and
Lacuna, Jr., Ernesto G. Isip, Honey H. Lacuna-Pangan, Ernesto M. (3) Resolution No. 13 dated 30 January 2003 24 of the Sanguniang Panlungsod, which
Nieva extended the validity of Resolution No. 97 to 30 April 2003, authorized then Mayor
Atienza to issue special business permits to the oil companies, and called for a
The following intervenors, all of which are corporations organized under Philippine laws, intervened: 7
reassessment of the ordinance.
Intervenors Nature of Business Social Justice Society v. Atienza (G.R. No. 156052):
The filing of an action for mandamus
before the Supreme Court
importing, distributing and marketing of petroleum products in the Philippines sinceto enforce
1922 Ordinance No. 8027
In the interim, an original action for mandamus entitled Social Justice Society v. Atienza, Jr.
docketed as G.R. No. 15605225 was filed on 4 December 2002 by Tumbokon and herein petitioners
Corporation (SHELL) manufacturing, refining, importing, distributing and marketing of petroleum productsSJS in andtheCabigao against then Mayor Atienza. The petitioners sought to compel former Mayor
Philippines Atienza to enforce Ordinance No. 8027 and cause the immediate removal of the terminals of the oil
companies.26
RON) manufacturing, refining, importing, distributing and marketing of petroleum productsIssuance
in theby the Regional Trial Court (RTC)
Philippines of writs of preliminary prohibitory injunction
and preliminary mandatory injunction,
They claim that their rights with respect to the oil depots in Pandacan would be directly affected by and status quo order in favor of the oil companies
the outcome of these cases. Unknown to the Court, during the pendency of G.R. No. 156052, and before the expiration of the
The Antecedents validity ofResolution No. 13, the oil companies filed the following actions before the Regional Trial
8
These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza, Jr. (hereinafter Court of Manila: (1) an action for the annulment of Ordinance No. 8027 with application for writs of
referred to asG.R. No. 156052), where the Court found: (1) that the ordinance subject thereof preliminary prohibitory injunction and preliminary mandatory injunction by Chevron; (2) a petition
Ordinance No. 8027 was enacted "to safeguard the rights to life, security and safety of the for prohibition and mandamus also for the annulment of the Ordinance with application for writs of
inhabitants of Manila;"9 (2) that it had passed the tests of a valid ordinance; and (3) that it is not preliminary prohibitory injunction and preliminary mandatory injunction by Shell; and (3) a petition
superseded by Ordinance No. 8119.10 Declaring that it is constitutional and valid,11 the Court assailing the validity of the Ordinance with prayer for the issuance of a writ of preliminary injunction
accordingly ordered its immediate enforcement with a specific directive on the relocation and and/or temporary restraining order (TRO) by Petron.27
transfer of the Pandacan oil terminals.12
Writs of preliminary prohibitory injunction and preliminary mandatory injunction were issued in favor
of Chevron and Shell on 19 May 2003. Petron, on the other hand, obtained a status quo order on 4
August 2004.28
The Enactment of Ordinance No. 8119 defining the Manila land use plan and zoning regulations
On 16 June 2006, then Mayor Atienza approved Ordinance No. 8119 entitled "An Ordinance
Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations of 2006 and Providing
for the Administration, Enforcement and Amendment thereto."29
Pertinent provisions relative to these cases are the following:
(a) Article IV, Sec. 730 enumerating the existing zones or districts in the City of Manila;
(b) Article V, Sec. 2331 designating the Pandacan oil depot area as a "Planned Unit
Development/Overlay Zone" (O-PUD); and
(c) the repealing clause, which reads:
SEC. 84. Repealing Clause. All ordinances, rules, regulations in conflict with the provisions of this
Ordinance are hereby repealed; PROVIDED, That the rights that are vested upon the effectivity of
this Ordinance shall not be impaired.32
7 March 2007 Decision in G.R. No. 156052;
The mayor has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan terminals
On 7 March 2007, the Court granted the petition for mandamus, and directed then respondent
Mayor Atienza to immediately enforce Ordinance No. 8027.33
Confined to the resolution of the following issues raised by the petitioners, to wit:
1. whether respondent [Mayor Atienza]has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan Terminals, and
2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal
Ordinance No. 8027.34
the Court declared:
x x x [T]he Local Government Code imposes upon respondent the duty, as city mayor, to "enforce
all laws and ordinances relative to the governance of the city." One of these is Ordinance No. 8027.
As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has
not been repealed by the Sanggunian or annulled by the courts. He has no other choice. It is his
ministerial duty to do so. x x x
xxxx
The question now is whether the MOU entered into by respondent with the oil companies and the
subsequent resolutions passed by the Sanggunianhave made the respondents duty to enforce
Ordinance No. 8027 doubtful, unclear or uncertain. x x x
We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with
Ordinance No. 8027, the resolutions which ratified it and made it binding on the Cityof Manila
expressly gave it full force and effect only until April 30, 2003. Thus, at present, there is nothing that
legally hinders respondent from enforcing Ordinance No. 8027.
Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world,
witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade
Center in New York City. The objective of the ordinance is toprotect the residents of Manila from the
catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan
Terminals. No reason exists why such a protective measure should be delayed.35 (Emphasis
supplied; citations omitted)
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 is constitutional
The oil companies and the Republic of the Philippines, represented by the DOE, filed their motions
for leave to intervene and for reconsideration of the 7 March 2007 Decision. During the oral
arguments, the parties submitted to the power of the Court torule on the constitutionality and validity
of the assailed Ordinance despite the pendency of the cases in the RTC. 36
On 13 February 2008, the Court granted the motions for leave to intervene of the oil companies and
the Republic of the Philippines but denied their respective motions for reconsideration. The
dispositive portion of the Resolution reads:
WHEREFORE, x x x
We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No. 8027. In
coordination with the appropriate agencies and other parties involved, respondent Mayor is hereby
ordered to oversee the relocation and transfer of the Pandacan Terminals out of its present site. 37
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 was not impliedly repealed
by Ordinance No. 8119
The Court also ruled that Ordinance No. 8027 was not impliedly repealed by Ordinance No. 8119.
On this score, the Court ratiocinated:
For the first kind of implied repeal, there must be an irreconcilable conflict between the two
ordinances. There is no conflict between the two ordinances. Ordinance No. 8027 reclassified the
Pandacan area from Industrial II to Commercial I. Ordinance No. 8119, Section 23, designated it as
a "Planned Unit Development/Overlay Zone (O-PUD)." In its Annex "C" which defined the zone
boundaries, the Pandacan area was shown to be within the "High Density Residential/Mixed Use
Zone (R-3/MXD)." x x x [B]oth ordinances actually have a common objective, i.e., to shift the zoning
classification from industrial to commercial (Ordinance No. 8027) or mixed residential commercial
(Ordinance No. 8119)
xxxx
Ordinance No. 8027 is a special law since it deals specifically with a certain area described therein
(the Pandacan oil depot area) whereas Ordinance No. 8119 can be considered a general law as it
covers the entire city of Manila.
xxxx
x x x The repealing clause of Ordinance No. 8119 cannot be taken to indicate the legislative intent to
repeal all prior inconsistent laws on the subject matter, including Ordinance No. 8027, a special
enactment, since the aforequoted minutes (an official record of the discussions in the Sanggunian)
actually indicated the clear intent to preserve the provisions of Ordinance No. 8027. 38
Filing of a draft Resolution amending Ordinance No. 8027 effectively allowing
the oil depots to stay in the Pandacan area; Manifestation and
Motion to forestall the passing of the new Ordinance filed in G.R. No. 156052
On 5 March 2009, respondent then Councilor Arlene W. Koa, filed with the Sangguniang
Panlungsod a draft resolution entitled "An Ordinance Amending Ordinance No. 8119 Otherwise
Known as The Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006 by Creating a
Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) and Providing for its
Enforcement."39 Initially numbered as Draft Ordinance No. 7177, this was later renumbered as
Ordinance No. 8187, the assailed Ordinance in these instant petitions.
Considering that the provisions thereof run contrary to Ordinance No. 8027, the petitioners in G.R.
No. 156052 filed a "Manifestation and Motion to: a) Stop the City Council of Manila from further
hearing the amending ordinance to Ordinance No. 8027; [and] b) Transfer the monitoring of the
enforcement of the Resolution of the Honorable Court on this case dated 13 February 2008 from
Branch 39, Manila Regional Trial Court to the Supreme Court." 40
28 April 2009 Resolution in G.R. No. 156052;
Second Motion for Reconsideration denied with finality;
succeeding motions likewise denied or otherwise noted without action
On 28 April 2009, pending the resolution of the Manifestation and Motion, the Court denied with
finalitythe second motion for reconsideration dated 27 February 2008 of the oil companies. 41
It further ruled that no further pleadings shall be entertained in the case. 42
Succeeding motions were thus deniedand/or noted without action. And, after the "Very Urgent
Motion to Stop the Mayor of the City of Manila from Signing Draft Ordinance No. 7177 and to Cite
Him for Contempt if He Would Do So" filed on 19 May 2009 was denied on 2 June 2009 for being
moot,43 all pleadings pertaining to the earlier motion against the drafting of an ordinance to amend
Ordinance No. 8027 were noted without action.44
The Enactment of Ordinance No. 8187
allowing the continued stay of the oil depots
On 14 May 2009, during the incumbency of former Mayor Alfredo S. Lim (Mayor Lim), who
succeeded Mayor Atienza, the Sangguniang Panlungsod enacted Ordinance No. 8187.45
The new Ordinance repealed, amended, rescinded or otherwise modified Ordinance No. 8027,
Section 23 of Ordinance No. 8119, and all other Ordinances or provisions inconsistent
therewith46 thereby allowing, once again, the operation of "Pollutive/Non-Hazardous and
Pollutive/Hazardous manufacturing and processing establishments" and "Highly Pollutive/Non-
Hazardous[,] Pollutive/Hazardous[,] Highly Pollutive/Extremely Hazardous[,] Non-
Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous; and Pollutive/Extremely
Hazardous manufacturing and processing establishments" within the newly created Medium
Industrial Zone (1-2) and Heavy Industrial Zone (1-3) in the Pandacan area.
Thus, where the Industrial Zoneunder Ordinance No. 8119 was limited to Light Industrial Zone (I-1),
Ordinance No. 8187 appended to the list a Medium Industrial Zone (I-2) and a Heavy Industrial
Zone (I-3), where petroleum refineries and oil depots are now among those expressly allowed.
Hence these petitions.
The Petitions
G.R. No. 187836
To support their petition for prohibition against the enforcement of Ordinance No. 8187, the
petitioner Social Justice Society (SJS) officers allege that:
1. The enactment of the assailed Ordinance is not a valid exercise of police power
because the measures provided therein do not promote the general welfare of the
people within the contemplation of the following provisions of law:
a) Article III, Section 18 (kk)47 of Republic Act No. 409 otherwise known
as the "Revised Charter of the City of Manila," which provides that the
Municipal Board shall have the legislative power to enact all ordinances it
may deem necessary and proper;
b) Section 1648 of Republic Act No. 7160 known as the Local
Government Code, which defines the scope of the general welfare
clause;
2. The conditions at the time the Court declared Ordinance No. 8027 constitutional in
G.R. No. 156052 exist to this date;
3. Despite the finality of the Decision in G.R. No. 156052, and notwithstanding that the
conditions and circumstances warranting the validity of the Ordinance remain the
same, the Manila City Council passed a contrary Ordinance, thereby refusing to
recognize that "judicial decisions applying or interpreting the laws or the Constitution
form part of the legal system of the Philippines;" 49 and
4. Ordinance No. 8187 is violative of Sections 15 and 16, Article II of the Constitution
of the Philippines on the duty of the State "to protect and promote the right to health of
the people"50 and "protect and advance the right of the people to a balanced and
healthful ecology."51 Petitioners pray that Ordinance No. 8187 of the City of Manila be
declared null and void, and that respondent, and all persons acting under him, be
prohibited from enforcing the same.
G.R. No. 187916
The petition for Prohibition, Mandamus and Certiorari with Prayer for Temporary Restraining Order
and/or Injunction against the enforcement of Ordinance No. 8187 of former Secretary of Department
of Environment and Natural Resources and then Mayor Atienza, together with other residents and
taxpayers of the City of Manila, also alleges violation of the right to health of the people and the right
to a healthful and balanced environment under Sections 15 and 16 of the Constitution.
Petitioners likewise claim that the Ordinance is in violation of the following health and environment-
related municipal laws, and international conventions and treaties to which the Philippines is a state
party:
1. Municipal Laws
(a) Sections 4,52 12,53 1954 and 3055 of Republic Act No. 8749 otherwise
known as the Philippine Clean Air Act;
(b) Environment Code (Presidential Decree No. 1152);
(c) Toxic and Hazardous Wastes Law (Republic Act No. 6969); and
(d) Civil Code provisions on nuisance and human relations;
2. International Conventions and Treaties to which the Philippines is a state party
a. Section 1 of the Universal Declaration of Human Rights, which states
that "[e]veryone has the right to life, liberty and security of person;"
b. Articles 6,56 2457 and 2758 of the Convention on the Rights of the Child,
summarized by the petitioners in the following manner:
1. the human right to safe and healthy environment[;]
2. human right to the highest attainable standard of health[;]
3. the human right to ecologically sustainable development[;]
4. the human right to an adequate standard of living, including access to safe food and
water[;]
5. the human right of the child to live in an environment appropriate for physical and
mental development[; and]
6. the human right to full and equal participation for all persons in environmental
decision-making and development planning, and in shaping decisions and policies
affecting ones community, at the local, national and international levels.59
Petitioners likewise posit that the title of Ordinance No. 8187 purports to amend or repeal Ordinance
No. 8119 when it actually intends to repeal Ordinance No. 8027. According to them, Ordinance No.
8027 was never mentioned in the title and the body of the new ordinance in violation of Section 26,
Article VI of the 1987 Constitution, which provides that every bill passed by Congress shall embrace
only one subject which shall be expressed in the title thereof.
Also pointed out by the petitioners is a specific procedure outlined in Ordinance No. 8119 that
should be observed when amending the zoning ordinance. This is provided for under Section 81
thereof, which reads:
SEC. 81. Amendments to the Zoning Ordinance. The proposed amendments to the Zoning
Ordinance asreviewed and evaluated by the City Planning and Development Office (CPDO)shall be
submitted to the City Council for approval of the majority of the Sangguniang Panlungsod members.
The amendments shall be acceptable and eventually approved: PROVIDED, That there is sufficient
evidence and justification for such proposal; PROVIDED FURTHER,That such proposal is
consistent with the development goals, planning objectives, and strategies of the Manila
Comprehensive Land Use Plan. Said amendments shall take effect immediately upon approval or
after thirty (30) days from application.
Petitioners thus pray that:
1. upon filing of [the] petition, [the] case be referred to the Court [E]n Banc, and setting
(sic) the case for oral argument;
2. upon the filing of [the] petition, a temporary restraining order be issued enjoining the
respondents from publishing and posting Manila City Ordinance No. 8187 and/or
posting of Manila City Ordinance No. 8187; and/or taking any steps to implementing
(sic) and/or enforce the same and after due hearing, the temporary restraining order
be converted to a permanent injunction;
3. x x x Manila City Ordinance 8187 [be declared] as null and void for being repugnant
to the Constitution and existing municipal laws and international covenants;
4. x x x the respondents [be ordered] to refrain from enforcing and/or implementing
Manila City Ordinance No. 8187;
5. x x x respondent City Mayor Alfredo S. Lim [be enjoined] from issuing any permits
(business or otherwise) to all industries whose allowable uses are anchored under the
provisions of Manila Ordinance No. 8187; and
6. x x x respondent Mayor of Manila Alfredo S. Lim [be ordered] to comply with the
Order of the Honorable Court in G.R. 156052 dated February 13, 2008. 60
The Respondents Position on the Consolidated Petitions
Respondent former Mayor Lim
In his Memorandum,61 former Mayor Lim, through the City Legal Officer, attacks the petitioners lack
of legal standing to sue. He likewise points out that the petitioners failed to observe the principle of
hierarchy of courts.
Maintaining that Ordinance No. 8187 is valid and constitutional, he expounds on the following
arguments:
On the procedural issues, he contends that: (1) it is the function of the Sangguniang Panlungsod to
enact zoning ordinances, for which reason, it may proceed to amend or repeal Ordinance No. 8119
without prior referral to the Manila Zoning Board of Adjustment and Appeals (MZBAA) as prescribed
under Section 80 (Procedure for Re-Zoning) and the City Planning and Development Office (CPDO)
pursuant to Section 81 (Amendments to the Zoning Ordinance) of Ordinance No. 8119, especially
when the action actually originated from the Sangguniang Panlungsod itself; (2) the Sangguniang
Panlungsod may, in the later ordinance, expressly repeal all or part of the zoning ordinance sought
to be modified; and (3) the provision repealing Section 23 of Ordinance No. 8119 is not violative of
Section 26, Article VI of the 1987 Constitution, which requires that every bill must embrace only one
subject and that such shall be expressed in the title.
On the substantive issues, he posits that the petitions are based on unfounded fears; that the
assailed ordinance is a valid exercise of police power; that it is consistent with the general welfare
clause and public policy, and is not unreasonable; that it does not run contrary to the Constitution,
municipal laws, and international conventions; and that the petitioners failed to overcome the
presumption of validity of the assailed ordinance.
Respondents Vice-Mayor Domagoso and the City Councilors who voted in favor of the assailed
ordinance
On 14 September 2012, after the Court gave the respondents several chances to submit their
Memorandum,62 they, through the Secretary of the Sangguniang Panlungsod, prayed that the Court
dispense with the filing thereof.
In their Comment,63 however, respondents offered a position essentially similar to those proffered by
former Mayor Lim.
The Intervenors Position on the Consolidated Petitions
On the other hand, the oil companies sought the outright dismissal of the petitions based on alleged
procedural infirmities, among others, incomplete requisites of judicial review, violation of the
principle of hierarchy of courts, improper remedy, submission of a defective verification and
certification against forum shopping, and forum shopping.
As to the substantive issues, they maintain, among others, that the assailed ordinance is
constitutional and valid; that the Sangguniang Panlalawigan is in the best position to determine the
needs of its constituents; that it is a valid exercise of legislative power; that it does not violate health
and environment-related provisions of the Constitution, laws, and international conventions and
treaties to which the Philippines is a party; that the oil depots are not likely targets of terrorists; that
the scaling down of the operations in Pandacan pursuant to the MOU has been followed; and that
the people are safe in view of the safety measures installed in the Pandacan terminals.
Incidentally, in its Manifestation dated 30 November 2010, 64 Petron informed the Court that it will
"cease [the] operation of its petroleum product storage facilities" 65 in the Pandacan oil terminal not
later than January 2016 on account of the following:
2.01 Environmental issues, many of which are unfounded, continually crop up and tarnish the
Companys image.
2.02. The location of its Pandacanterminal is continually threatened, and made uncertain preventing
long-term planning, by the changing local government composition. Indeed, the relevant zoning
ordinances have been amended three (3) times, and their validity subjected to litigation. 66
Intervening Events
On 28 August 2012, while the Court was awaiting the submission of the Memorandum of
respondents Vice-Mayor Domagoso and the councilors who voted in favor of the assailed
Ordinance, the Sangguniang Panlungsod, which composition had already substantially changed,
enacted Ordinance No. 828367 entitled "AN ORDINANCE AMENDING SECTION 2 OF
ORDINANCE NO. 8187 BY RECLASSIFYING THE AREA WHERE PETROLEUM REFINERIES
AND OIL DEPOTS ARE LOCATED FROM HEAVY INDUSTRIAL (1-3) TO HIGH INTENSITY
COMMERCIAL/MIXED USE ZONE (C3/MXD).
The new ordinance essentially amended the assailed ordinance to exclude the area where
petroleum refineries and oil depots are located from the Industrial Zone.
Ordinance No. 8283 thus permits the operation of the industries operating within the Industrial Zone.
However, the oil companies, whose oil depots are located in the High Intensity Commercial/Mixed
Use Zone (C3/MXD), are given until the end of January 2016 within which to relocate their terminals.
Former Mayor Lim, who was then the incumbent mayor, did not support the amendment.
Maintaining that the removal of the oil depots was prejudicial to public welfare, and, on account of
the pending cases in the Supreme Court, he vetoed Ordinance No. 8283 on 11 September 2012. 68
On 28 November 2012, former Mayor Lim filed a Manifestation informing this Court that the
Sangguniang Panlungsod voted to override the veto, and that he, in turn, returned it again with his
veto. He likewise directed the Sangguniang Panlungsod to append his written reasons for his veto of
the Ordinance, so that the same will be forwarded to the President for his consideration in the event
that his veto is overridden again.69
On 11 December 2012, Shell also filed a similar Manifestation. 70
Meanwhile, three days after former Mayor Lim vetoed the new ordinance, Atty. Luch R. Gempis, Jr.
(Atty. Gempis), Secretary of the Sangguniang Panlungsod, writing on behalf of respondents Vice-
Mayor Domagoso and the City Councilors of Manila who voted in favor of the assailed Ordinance,
finally complied with this Courts Resolution dated 17 July 2012 reiterating its earlier directives 71 to
submit the said respondents Memorandum.
In his Compliance/Explanation with Urgent Manifestation 72 dated 13 September 2012, Atty. Gempis
explained that it was not his intention to show disrespect to this Court or to delay or prejudice the
disposition of the cases.
According to him, he signed the Comment prepared by respondents Vice-Mayor and the City
Councilors only to attest that the pleading was personally signed by the respondents. He clarified
that he was not designated as the legal counsel of the respondents as, in fact, he was of the
impression that, pursuant to Section 481(b)(3) of the Local Government Code, 73 it is the City Legal
Officer who isauthorized to represent the local government unit or any official thereof in a litigation. It
was for the same reason that he thought that the filing of a Memorandum may already be dispensed
with when the City Legal Officer filed its own on 8 February 2010. He further explained that the
Ordinance subject of these cases was passed during the 7th Council (2007-2010); that the
composition of the 8th Council (2010-2013) had already changed after the 2010 elections; and that
steps were already taken to amend the ordinance again. Hence, he was in a dilemma as to the
position of the Sangguniang Panlungsod at the time he received the Courts Resolution of 31 May
2011.
Atty. Gempis, thus, prayed that the Court dispense with the filing of the required memorandum in
view of the passing of Ordinance No. 8283.
Issue
The petitioners arguments are primarily anchored on the ruling of the Court in G. R. No. 156052
declaring Ordinance No. 8027 constitutional and valid after finding that the presence of the oil
terminals in Pandacan is a threat to the life and security of the people of Manila. From thence, the
petitioners enumerated constitutional provisions, municipal laws and international treaties and
conventions on health and environment protection allegedly violated by the enactment of the
assailed Ordinance to support their position.
The resolution of the present controversy is, thus, confined to the determination of whether or not
the enactment of the assailed Ordinance allowing the continued stay of the oil companies in the
depots is, indeed, invalid and unconstitutional.
Our Ruling
We see no reason why Ordinance No. 8187 should not be stricken down insofar as the presence of
the oil depots in Pandacan is concerned.
I As to who may file a petition for certiorari, prohibition or mandamus, Petron posits that petitioners
We first rule on the procedural issues raised by the respondents and the oil companies.
At the outset, let it be emphasized that the Court, in G.R. No. 156052, has already pronounced that
the matter of whether or not the oil depots should remain in the Pandacan area is of transcendental
importance to the residents of Manila.74
We may, thus, brush aside procedural infirmities, if any, as we had in the past, and take cognizance
of the cases75 if only to determine if the acts complained of are no longer within the bounds of the
Constitution and the laws in place.76
Put otherwise, there can be no valid objection to this Courts discretion to waive one or some
procedural requirements if only to remove any impediment to address and resolve the serious
constitutional question77 raised in these petitions of transcendental importance, the same having
farreaching implications insofar as the safety and general welfare of the residents of Manila, and
even its neighboring communities, are concerned.
Proper Remedy
Respondents and intervenors argue that the petitions should be outrightly dismissed for failure on
the part of the petitioners to properly apply related provisions of the Constitution, the Rules of Court,
and/or the Rules of Procedure for Environmental Cases relative to the appropriate remedy available
to them.
To begin with, questioned is the applicability of Rule 65 78 of the Rules of Court to assail the validity
and constitutionality of the Ordinance.
there is no appeal, or any plain,
speedy, and adequate remedy
in the ordinary course of law
Rule 65 specifically requires that the remedy may be availed of only when "there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course of law." 79
Shell argues that the petitioners should have sought recourse before the first and second level
courts under the Rules of Procedure for Environmental Cases, 80 which govern "the enforcement or
violations of environmental and other related laws, rules and regulations." 81 Petron additionally
submits that the most adequate remedy available to petitioners is to have the assailed ordinance
repealed by the Sangguniang Panlungsod. In the alternative, a local referendum may be had. And,
assuming that there were laws violated, the petitioners may file an action for each alleged violation
of law against the particular individuals that transgressed the law.
It would appear, however, that the remedies identified by the intervenors prove to be inadequate
toresolve the present controversies in their entirety owing to the intricacies of the circumstances
herein prevailing.
The scope of the Rules of Procedure for Environmental Cases is embodied in Sec. 2, Part I, Rule I
thereof. It states that the Rules shall govern the procedure in civil, criminal and special civil actions
before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and
Municipal Circuit Trial Courts, and the Regional Trial Courts involving enforcement or violations of
environmental and other related laws, rules and regulations such as but not limited to the following:
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
xxxx
(r) R.A. No. 8749, Clean Air Act;
xxxx
(y) Provisions in C.A. No. 141, x x x; and other existing laws that relate to the
conservation, development, preservation, protection and utilization of the environment
and natural resources.82 (Emphasis supplied)
Notably, the aforesaid Rules are limited in scope. While, indeed, there are allegations of violations of
environmental laws in the petitions, these only serve as collateral attacks that would support the
other position of the petitioners the protection of the rightto life, security and safety. Moreover, it
bears emphasis that the promulgation of the said Rules was specifically intended to meet the
following objectives:
SEC. 3. Objectives.The objectives of these Rules are:
(a) To protect and advance the constitutional right of the people to a balanced and
healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for the enforcement of
environmental rights and duties recognized under the Constitution, existing laws, rules
and regulations, and international agreements;
(c) To introduce and adopt innovations and best practices ensuring the effective
enforcement of remedies and redress for violation of environmental laws; and
(d) To enable the courts to monitor and exact compliance with orders and judgments in
environmental cases.83
Surely, the instant petitions are not within the contemplation of these Rules.
Relative to the position of Petron, it failed to consider that these petitions are already a sequel to
G.R. No. 156052, and that there are some issues herein raised that the remedies available at the
level of the Sangguniang Panlungsod could not address. Neither could the filing of an individual
action for each law violated be harmonized with the essence of a "plain, speedy, and adequate"
remedy.
From another perspective, Shell finds fault with the petitioners direct recourse to this Court when,
pursuant to Section 5, Article VIII of the Constitution, the Supreme Court exercises only appellate
jurisdiction over cases involving the constitutionality or validity of an ordinance. 84 Thus:
Section 5.The Supreme Court shall have the following powers:
xxxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courtsin:
a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question. (Emphasis supplied)
To further support its position, it cites the case of Liga ng mga Barangay National v. City Mayor of
Manila,85 where the petitioners sought the nullification of the mayors executive order and the
councils ordinance concerning certain functions of the petitioners that are vested in them by law.
There, the Court held:
Second, although the instant petition is styled as a petition for certiorari, in essence, it seeks the
declaration by this Court of the unconstitutionality or illegality of the questioned ordinance and
executive order. It, thus, partakes of the nature of a petition for declaratory relief over which this
Court has only appellate, not original, jurisdiction. 86 Section 5, Article VIII of the Constitution
provides: x x x
As such, this petition must necessary fail, as this Court does not have original jurisdiction over a
petition for declaratory relief even if only questions of law are involved. 87
Assuming that a petition for declaratory relief is the proper remedy, and that the petitions should
have been filed with the Regional Trial Court, we have, time and again, resolved to treat such a
petition as one for prohibition, provided that the case has far-reaching implications and
transcendental issues that need to be resolved, 88 as in these present petitions.
On a related issue, we initially found convincing the argument that the petitions should have been
filed with the Regional Trial Court, it having concurrent jurisdiction with this Court over a special civil
action for prohibition, and original jurisdiction over petitions for declaratory relief. However, as we
have repeatedly said, the petitions at bar are of transcendental importance warranting a relaxation
of the doctrine of hierarchy of courts.89 In the case of Jaworski v. PAGCOR,90 the Court ratiocinated:
Granting arguendothat the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that weset aside the
technical defects and take primary jurisdiction over the petition at bar. x x x This is in accordance
with the well-entrenched principle that rules of procedure are not inflexible tools designed to hinder
or delay, but to facilitate and promote the administration of justice.Their strict and rigid application,
which would result in technicalities that tend to frustrate, rather than promote substantial justice,
must always be eschewed. (Emphasis supplied)
persons aggrieved thereby
are not among the "persons aggrieved" contemplated under Sections 1 to 3 of Rule 65 of the Rules
of Court.
Chevron argues that petitioners, whether as "citizens," taxpayers," or legislators," lack the legal
standing toassail the validity and constitutionality of Ordinance No. 8187. It further claims that
petitioners failed to show that they have suffered any injury and/or threatened injury as a result of
the act complained of.91
Shell also points out that the petitions cannot be considered taxpayers suit, for then, there should
be a claim that public funds were illegally disbursed and that petitioners have sufficient interest
concerning the prevention of illegal expenditure of public money.92 In G.R. No. 187916, Shell
maintains that the petitioners failed to show their personal interest in the case and/or to establish
that they may represent the general sentiments of the constituents of the City of Manila so as to be
treated as a class suit. Even the minors, it argues, are not numerous and representative enough for
the petition to be treated as a class suit. Asto the city councilors who joined the petitioners in
assailing the validity of Ordinance No. 8187, Shell posits that they cannot invoke the ruling in Prof.
David v. Pres. Macapagal-Arroyo,93 where the Court held that legislators may question the
constitutionality of a statute, if and when it infringes upon their prerogatives as legislators, because
of the absence of the allegation that the assailed ordinance indeed infringes upon their prerogatives.
Former Mayor Lim submitted a similar position supported by a number of cases on the concept of
locus standi,94 the direct injury test,95 an outline of the stringent requirements of legal standing when
suing as a citizen,96 as a taxpayer,97 as a legislator and in cases where class suits are filed in behalf
of all citizens.98
Their arguments are misplaced.
In G.R. No. 156052, we ruled that the petitioners in that case have a legal right to seek the
enforcement of Ordinance No. 8027 because the subject of the petition concerns a public right, and
they, as residents of Manila, have a direct interest in the implementation of the ordinances of the
city. Thus:
To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance,
petitioner SJS states that it is a political party registered with the Commission on Elections and has
its offices in Manila. It claims to have many members who are residents of Manila. The other
petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.
We need not belabor this point. We have ruled in previous cases that when
a mandamus proceeding concerns a public right and its object is to compel a public duty, the people
who are interested in the execution of the laws are regarded as the real parties in interest and they
need not show any specific interest. Besides, as residents of Manila, petitioners have a direct
interest in the enforcement of the citys ordinances. 99 x x x (Citations omitted)
No different are herein petitioners who seek to prohibit the enforcement of the assailed ordinance,
and who deal with the same subject matter that concerns a public right. Necessarily, the people who
are interested in the nullification of such an ordinance are themselves the real parties in interest, for
which reason, they are no longer required to show any specific interest therein. Moreover, it is worth
mentioning that SJS, now represented by SJS Officer Alcantara, has been recognized by the Court
in G.R. No. 156052 to have legal standing to sue in connection with the same subject matter herein
considered. The rest of the petitioners are residents of Manila. Hence, all of them have a direct
interest in the prohibition proceedings against the enforcement of the assailed ordinance.
In the case of Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc.
(IDEALS, INC.) v. Power Sector Assets and Liabilities Management Corporation
(PSALM),100 involving a petition for certiorari and prohibition to permanently enjoin PSALM from
selling the Angat Hydro-Electric Power Plant (AHEPP) to Korea Water Resources Corporation (K-
Water), the Court ruled:
"Legal standing" or locus standihas 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, alleging more than a generalized grievance. x x x This Court, however, has
adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft
anissue of transcendental significance to the people, as when the issues raised are of paramount
importance to the public. Thus, when the proceeding involves the assertion of a public right, the
mere fact that the petitioner is a citizen satisfies the requirement of personal interest.
There can be no doubt that the matter of ensuring adequate water supply for domestic use is one of
paramount importance to the public. That the continued availability of potable water in Metro Manila
might be compromised if PSALM proceeds with the privatization of the hydroelectric power plant in
the Angat Dam Complex confers upon petitioners such personal stake in the resolution of legal
issues in a petition to stop its implementation.101 (Emphasis supplied; citations omitted)
In like manner, the preservation of the life, security and safety of the people is indisputably a right of
utmost importance to the public. Certainly, the petitioners, as residents of Manila, have the required
personal interest to seek relief from this Court to protect such right.
in excess of its or his jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction
Petron takes issue with the alleged failure of the petitioners to establish the facts with certainty that
would show that the acts of the respondents fall within the parameters of the grave abuse of
discretion clause settled by jurisprudence, to wit:
x x x "[G]rave abuse of discretion" means such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be
so patent and gross asto amount to an evasion of positive duty or to a virtual refusal to perform the
duty enjoined by or to act all in contemplation of law. 102
It is pointless to discuss the matter at length in these instant cases of transcendental importance in
view of the Courts pronouncement, in Magallona v. Ermita. 103 There it held that the writs of
certiorariand prohibition are proper remedies to test the constitutionality of statutes, notwithstanding
the following defects:
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot
issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-
judicial or ministerial powers on the part of respondents and resulting prejudice on the part of
petitioners.
Respondents submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of
certiorariand prohibition as proper remedial vehicles to test the constitutionality of statutes, and
indeed, of acts of other branches of government. Issues of constitutional importx x x carry
such relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, noncompliance with the letter
of procedural rules notwithstanding. The statute sought to be reviewed here is one such
law.104 (Emphasis supplied; citations omitted)
Requisites of judicial review
For a valid exercise of the power of judicial review, the following requisites shall concur: (1) the
existence of a legal controversy; (2) legal standing to sue of the party raising the constitutional
question; (3) a plea that judicial review be exercised at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.105
Only the first two requisites are put in issue in these cases.
On the matter of the existence of a legal controversy, we reject the contention that the petitions
consist of bare allegations based on speculations, surmises, conjectures and hypothetical grounds.
The Court declared Ordinance No. 8027 valid and constitutional and ordered its implementation.
Withthe passing of the new ordinance containing the contrary provisions, it cannot be any clearer
that here lies an actual case or controversy for judicial review. The allegation on this, alone, is
sufficient for the purpose.
The second requisite has already been exhaustively discussed.
Proof of identification required in the notarization
of the verification and certification against forum
shopping in G.R. No. 187916
At the bottom of the Verification and Certification against Forum Shopping of the petition in G.R. No.
187916 is the statement of the notary public to the effect that the affiant, in his presence and after
presenting "an integrally competent proof of identification with signature and photograph," 106 signed
the document under oath.
Citing Sec. 163 of the Local Government Code,107 which provides that an individual acknowledging
any document before a notary public shall present his Community Tax Certificate (CTC), Chevron
posits that the petitioners failure to present his CTC rendered the petition fatally defective
warranting the outright dismissal of the petition.
We disagree.
The verification and certification against forum shopping are governed specifically by Sections 4 and
5,Rule 7 of the Rules of Court.
Section 4 provides that a pleading, when required to be verified, shall be treated as an unsigned
pleading if it lacks a proper verification while Section 5 requires that the certification to be executed
by the plaintiff or principal party be under oath.
These sections, in turn, should be read together with Sections 6 and 12, Rule 2 of the 2004 Rules
on Notarial Practice.
Section 6108 of the latter Rules, specifically, likewise provides that any competent evidence of
identity specified under Section 12 thereof may now be presented before the notary public, to wit:
SEC. 12. Competent Evidence of Identity. - The phrase "competent evidence of identity" refers to
the identification of an individual based on:
(a) at least one current identification document issued by an official
agency bearing the photograph and signature of the individual, such as
but not limited to passport, drivers license, Professional Regulations
Commission ID, National Bureau of Investigation clearance, police
clearance, postal ID, voters ID, Barangay certification, Government
Service and Insurance System (GSIS) e-card, Social Security System
(SSS) card, Philhealth card, senior citizen card, Overseas Workers
Welfare Administration (OWWA) ID, OFW ID, seamans book, alien
certificate of registration/immigrant certificate of registration, government
office ID, certification from the National Council for the Welfare of Disable
Persons (NCWDP), Department of Social Welfare and Development
(DSWD) certification; or
(b) x x x.109
Forum shopping
Shell contends that the petitioners in G.R. No. 187836 violated the rule against forum shopping
allegedly because all the elements thereof are present in relation to G.R. No. 156052, to wit:
1. "identity of parties, or at least such parties who represent the same interests in both
actions" According to Shell, the interest of petitioner SJS in G.R. No. 156052 and the
officers of SJS in G.R. No. 187836 are clearly the same. Moreover, both actions
implead the incumbent mayor of the City of Manila as respondent. Both then
respondent Mayor Atienza in G.R. No. 156052 and respondent former Mayor Lim in
G.R. No. 187836 are sued in their capacity as Manila mayor.
2. "identity of rights asserted and relief prayed for, the relief being founded on the
same fact(s)" Shell contends that, in both actions, petitioners assert the same rights
to health and to a balanced and healthful ecology relative to the fate of the Pandacan
terminal, and seek essentially the same reliefs, that is, the removal of the oil depots
from the present site.
3. "the identity of the two preceding particulars is such that any judgment rendered in
the pending case, regardless of which party is successful, would amount to res
judicata in the other" Relative to the filing of the Manifestation and Motion to: a) Stop
the City Council of Manila from further hearing the amending ordinance to Ordinance
No. 8027 x x x (Manifestation and Motion) and Very Urgent Motion to Stop the Mayor
of the City of Manila from Signing Draft Ordinance No. 7177 [now Ordinance No. 8187]
and to Cite Him for Contempt if He Would Do So (Urgent Motion) both in G.R. No.
156052, Shell points out the possibility that the Court would have rendered conflicting
rulings "on cases involving the same facts, parties, issues and reliefs prayed for." 110
We are not persuaded.
In Spouses Cruz v. Spouses Caraos,111 the Court expounded on the nature of forum shopping.
Thus:
Forum shopping is an act of a party, against whom an adverse judgment or order has been
rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, other
than by appeal or special civil action for certiorari. It may also be the institution of two or more
actions or proceedings grounded on the same cause on the supposition that one or the other court
would make a favorable disposition. The established rule is that for forum shopping to exist, both
actions must involve the same transactions, same essential facts and circumstances and must raise
identical causes of actions, subject matter, and issues. x x x 112 (Citations omitted) It bears to stress
that the present petitions were initially filed, not to secure a judgment adverse to the first decision,
but, precisely, to enforce the earlier ruling to relocate the oil depots from the Pandacan area.
As to the matter of the denial of the petitioners Manifestation and Urgent Motion in G.R. No.
156052, which wereboth incidental to the enforcement of the decision favorable to them brought
about by the intervening events after the judgment had become final and executory, and which
involve the same Ordinance assailed in these petitions, we so hold that the filing of the instant
petitions is not barred by res judicata.
In the same case of Spouses Cruz v. Spouses Caraos involving the refiling of a complaint, which
had been earlier dismissed without qualification that the dismissal was with prejudice, and which
had not been decided on the merits, the Court declared that such re-filing did not amount to forum
shopping. It ratiocinated:
It is not controverted that the allegations of the respective complaints in both Civil Case No. 95-1387
and Civil Case No. 96-0225 are similarly worded, and are identical in all relevant details, including
typographical errors, except for the additional allegations in support of respondents prayer for the
issuance of preliminary injunction in Civil Case No. 95-1387. It is similarly not disputed that both
actions involve the same transactions; same essential facts and circumstances; and raise identical
causes of actions, subject matter, and issues.
xxxx
x x x The dismissal of Civil Case No. 95-1387 was without prejudice. Indeed, the Order dated 20
November 1995, dismissing Civil Case No. 95-1387 was an unqualified dismissal. More
significantly, its dismissal was not based on grounds under paragraphs (f), (h), and (i) of Section 1 of
Rule 16 of the Rules of Court, which dismissal shall bar the refiling of the same action or claim as
crystallized in Section 5 of Rule 16 thereof, thus:
SEC. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss
based on paragraphs (f), (h), and (i) of section 1 hereof shall bar the refiling of the same action or
claim.
From the foregoing, it is clear that dismissals under paragraphs (f), (h), and (i) of Section 1 of Rule
16 of the Rules of Court constitute res judicata, to wit:
(f) That the cause of action isbarred by a prior judgment or by the statute of limitations;
xxxx
(h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned,
or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the statute
of frauds.
Res judicata or bar by prior judgmentis a doctrine which holds that a matter that has been
adjudicated by a court of competent jurisdiction must be deemed to have been finally and
conclusively settled if it arises in any subsequent litigation between the same parties and for the
same cause. Res judicata exists when the following elements are present: (a) the former judgment
must be final; (b) the court which rendered judgment had jurisdiction over the parties and the subject
matter; (3)it must be a judgment on the merits; and (d) and there must be, between the first and
second actions, identity ofparties, subject matter, and cause of action.113 (Emphasis supplied;
citations omitted)
Here, it should be noted that this Court denied the said Manifestation and Urgent Motion, and
refused to act on the succeeding pleadings, for being moot. 114 Clearly, the merits of the motion were
not considered by the Court. The following disquisition of the Court in Spouses Cruz v. Spouses
Caraosis further enlightening:
The judgment of dismissal in Civil Case No. 95-1387 does not constitute res judicata to sufficiently
bar the refiling thereof in Civil Case No. 96-0225. As earlier underscored, the dismissal was one
without prejudice. Verily, it was not a judgment on the merits. It bears reiterating that a judgment on
the merits is one rendered after a determination of which party is right, as distinguished from a
judgment rendered upon some preliminary or formal or merely technical point. The dismissal of the
case without prejudice indicates the absence of a decision on the merits and leaves the parties free
to litigate the matter in a subsequent action asthough the dismissed action had not been
commenced.115(Emphasis supplied; citations omitted)
Considering that there is definitely no forum shopping in the instant cases, we need not discuss in
detail the elements of forum shopping.
II
The Local Government Code of 1991 expressly provides that the Sangguniang Panlungsod is
vested with the power to "reclassify land within the jurisdiction of the city" 116 subject to the pertinent
provisions of the Code. It is also settled that an ordinance may be modified or repealed by another
ordinance.117 These have been properly applied in G.R. No. 156052, where the Court upheld the
position of the Sangguniang Panlungsod to reclassify the land subject of the Ordinance, 118 and
declared that the mayor has the duty to enforce Ordinance No. 8027, provided that it has not been
repealed by the Sangguniang Panlungsod or otherwise annulled by the courts. 119 In the same case,
the Court also used the principle that the Sanguniang Panlungsod is in the best position to
determine the needs of its Constituents120 that the removal of the oil depots from the Pandacan
area is necessary "to protect the residents of Manila from catastrophic devastation in case of a
terrorist attack on the Pandacan Terminals." 121
Do all these principles equally apply to the cases at bar involving the same subject matter to justify
the contrary provisions of the assailed Ordinance?
We answer in the negative.
We summarize the position of the Sangguniang Panlungsodon the matter subject of these petitions.
In 2001, the Sanggunian found the relocation of the Pandacan oil depots necessary. Hence, the
enactment of Ordinance No. 8027.
In 2009, when the composition of the Sanggunian had already changed, Ordinance No. 8187 was
passed in favor of the retention of the oil depots. In 2012, again when some of the previous
members were no longer re-elected, but with the Vice-Mayor still holding the same seat, and
pending the resolution of these petitions, Ordinance No. 8283 was enacted to give the oil depots
until the end of January 2016 within which to transfer to another site. Former Mayor Lim stood his
groundand vetoed the last ordinance.
In its Comment, the 7th Council (2007-2010) alleged that the assailed Ordinance was enacted to
alleviate the economic condition of its constituents. 122
Expressing the same position, former Mayor Lim even went to the extent of detailing the steps 123 he
took prior to the signing of the Ordinance, if only to show his honest intention to make the right
decision.
The fact remains, however, that notwithstanding that the conditions with respect to the operations of
the oil depots existing prior to the enactment of Ordinance No. 8027 do not substantially differ to this
day, as would later be discussed, the position of the Sangguniang Panlungsod on the matter has
thrice changed, largely depending on the new composition of the council and/or political affiliations.
The foregoing, thus, shows that its determination of the "general welfare" of the city does not after
all gear towards the protection of the people in its true sense and meaning, but is, one way or
another, dependent on the personal preference of the members who sit in the council as to which
particular sector among its constituents it wishes to favor.
Now that the City of Manila, through the mayor and the city councilors, has changed its view on the
matter, favoring the citys economic related benefits, through the continued stay of the oil terminals,
over the protection of the very lives and safety of its constituents, it is imperative for this Court to
make a final determination on the basis of the facts on the table as to which specific right of the
inhabitants of Manila should prevail. For, in this present controversy, history reveals that there is
truly no such thing as "the will of Manila" insofar as the general welfare of the people is concerned.
If in sacrilege, in free translation of Angara124 by Justice Laurel, we say when the judiciary mediates
we do notin reality nullify or invalidate an act of the Manila Sangguniang Panlungsod, but only
asserts the solemn and sacred obligation assigned to the Court by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
III
The measures taken by the intervenors to lend support to their position that Manila is now safe
despite the presence of the oil terminals remain ineffective. These have not completely removed the
threat to the lives of the in habitants of Manila.
In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was declared as a
guarantee for the protection of the constitutional right to life of the residents of Manila. There, the
Court said that the enactment of the said ordinance was a valid exercise of police power with the
concurrence of the two requisites: a lawful subject "to safeguard the rights to life, security and
safety of all the inhabitants of Manila;" 125 and a lawful method the enactment of Ordinance No.
8027 reclassifying the land use from industrial to commercial, which effectively ends the continued
stay of the oil depots in Pandacan.126
In the present petitions, the respondents and the oil companies plead that the Pandacan Terminal
has never been one of the targets of terrorist attacks; 127 that the petitions were based on unfounded
fears and mere conjectures;128and that the possibility that it would be picked by the terrorists is nil
given the security measures installed thereat.129
The intervenors went on to identify the measures taken to ensure the safety of the people even with
the presence of the Pandacan Terminals. Thus:
1. Chevron claims that it, together with Shell and Petron, continues to enhance the
safety and security features of the terminals. They likewise adopt fire and product spill
prevention measures in accordance with the local standards set by the Bureau of Fire
Protection, among others, and with the international standards of the American
Petroleum Industry ("API") and the National Fire Prevention and Safety Association
("NFPSA"); that since 1914, the oil depots had not experienced "any incident beyond
the ordinary risks and expectations"130 of the residents of Manila; and that it received a
passing grade on the safety measures they installed in the facilities from the
representatives of the City of Manila who conducted an ocular inspection on 22 May
2009; and
2. Referring to the old MOU entered into between the City of Manila and the DOE, on
the one hand, and the oil companies, on the other, where the parties thereto conceded
and acknowledged that the scale-down option for the Pandacan Terminal operations is
the best alternative to the relocation of the terminals, Shell enumeratesthe steps taken
to scale down its operations.
As to the number of main fuel tanks, the entire Pandacan Terminal has already decommissioned
twenty-eight out of sixty-four tanks. Speaking for Shell alone, its LPG Spheres, which it claims is the
only product that may cause explosion, was part of those decommissioned, thereby allegedly
removing the danger of explosion. Safety buffer zones and linear/green parks were likewise created
to separate the terminal from the nearest residential area. Shells portion of the oil depot is likewise
allegedly equipped with the latest technology to ensure air-quality control and waterquality control,
and to prevent and cope with possible oil spills with a crisis management plan in place in the event
that an oil spill occurs. Finally, Shell claims that the recommendations of EQE International in its
Quantitative Risk Assessment (QRA) study, which it says is one of the leading independent risk
assessment providers in the world and largest risk management consultancy, were sufficiently
complied with; and that, on its own initiative, it adopted additional measures for the purpose, for
which reason, "the individual risk level resulting from any incident occurring from the Pandacan
Terminal, per the QRA study, is twenty (20) times lower compared to the individual risk level of an
average working or domestic environment."131
We are not persuaded.
The issue of whether or not the Pandacan Terminal is not a likely target of terrorist attacks has
already been passed upon in G. R. No. 156052. Based on the assessment of the Committee on
Housing, Resettlement and Urban Development of the City of Manila and the then position of the
Sangguniang Panlungsod,132 the Court was convinced that the threat of terrorism is imminent. It
remains so convinced.
Even assuming that the respondents and intervenors were correct, the very nature of the depots
where millions of liters of highly flammable and highly volatile products, regardless of whether ornot
the composition may cause explosions, has no place in a densely populated area. Surely, any
untoward incident in the oil depots, beit related to terrorism of whatever origin or otherwise, would
definitely cause not only destruction to properties within and among the neighboring communities
but certainly mass deaths and injuries.
With regard to the scaling down of the operations in the Pandacan Terminals, which the oil
companies continue to insist to have been validated and recognized by the MOU, the Court,in G.R.
No. 156052, has already put this issue to rest. It specifically declared that even assuming that the
terms of the MOU and Ordinance No. 8027 were inconsistent, the resolutions ratifying the MOU
gave it full force and effect only until 30 April 2003. 133
The steps taken by the oil companies, therefore, remain insufficient to convince the Court that the
dangers posed by the presence of the terminals in a thickly populated area have already been
completely removed.
For, given that the threat sought to be prevented may strike at one point or another, no matter how
remote it is as perceived by one or some, we cannot allow the right to life to bedependent on the
unlikelihood of an event. Statistics and theories of probability have no place in situations where the
very life of not just an individual but of residents of big neighborhoods is at stake.
IV
It is the removal of the danger to life not the mere subdual of risk of catastrophe, that we saw in and
made us favor Ordinance No. 8027. That reason, unaffected by Ordinance No. 8187, compels the
affirmance of our Decision in G.R. No. 156052.
In striking down the contrary provisions of the assailed Ordinance relative to the continued stay of
the oil depots, we follow the same line of reasoning used in G.R. No. 156052, to wit: Ordinance No.
8027 was enacted "for the purpose of promoting sound urban planning, ensuring health, public
safety and general welfare" of the residents of Manila. The Sanggunian was impelled to take
measures to protect the residents of Manila from catastrophic devastation in case of a terrorist
attack on the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the area
defined in the ordinance from industrial to commercial.
The following facts were found by the Committee on Housing, Resettlement and Urban
Development of the City of Manila which recommended the approval of the ordinance:
(1) the depot facilities contained 313.5 million liters of highly flammable and highly
volatile products which include petroleum gas, liquefied petroleum gas, aviation fuel,
diesel, gasoline, kerosene and fuel oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacaang Palace; and
(4) in case of an explosion or conflagration in the depot, the fire could spread to the
neighboring communities.
The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants
of Manila and not just of a particular class. The depot is perceived, rightly or wrongly, as a
representation of western interests which means that it is a terrorist target. As long as it (sic) there is
such a target in their midst, the residents of Manila are not safe. It therefore became necessary to
remove these terminals to dissipate the threat. According to respondent:
Such a public need became apparent after the 9/11 incident which showed that what was perceived
to be impossible to happen, to the most powerful country in the world at that, is actually possible.
The destruction of property and the loss of thousands of lives on that fateful day became the
impetus for a public need. Inthe aftermath of the 9/11 tragedy, the threats of terrorism continued
[such] that it became imperative for governments to take measures to combat their effects.
xxxx
Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027. Without
a doubt, there are no impediments to its enforcement and implementation. Any delay is unfair to the
inhabitants of the City of Manila and its leaders who have categorically expressed their desire for the
relocation of the terminals. Their power to chart and control their own destiny and preserve their
lives and safety should not be curtailed by the intervenors warnings of doomsday scenarios and
threats of economic disorder if the ordinance is enforced. 134
The same best interest of the public guides the present decision. The Pandacan oil depot remains a
terrorist target even if the contents have been lessened. In the absence of any convincing reason to
persuade this Court that the life, security and safety of the inhabitants of Manila are no longer put at
risk by the presence of the oil depots, we hold that Ordinance No. 8187 in relation to the Pandacan
Terminals is invalid and unconstitutional.
There is, therefore, no need to resolve the rest of the issues.
Neither is it necessary to discuss at length the test of police power against the assailed ordinance.
Suffice it to state that the objective adopted by the Sangguniang Panlungsod to promote the
constituents general welfare in terms of economic benefits cannot override the very basic rights to
life, security and safety of the people.
In. G.R. No. 156052, the Court explained:
Essentially, the oil companies are fighting for their right to property. They allege that they stand
tolose billions of pesos if forced to relocate. However, based on the hierarchy of constitutionally
protected rights, the right to life enjoys precedence over the right to property. The reason is obvious:
life is irreplaceable, property is not. When the state or LGUs exercise of police power clashes with a
few individuals right to property, the former should prevail. 135
We thus conclude with the very final words in G.R. No. 156052:
On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and 14,000
liters of diesel exploded in the middle of the street a short distance from the exit gate of the
Pandacan Terminals, causing death, extensive damage and a frightening conflagration in the vicinity
of the incident. Need we say anthing about what will happen if it is the estimated 162 to 211 million
liters [or whatever is left of the 26 tanks] of petroleum products in the terminal complex will blow
up?136
V
As in the prequel case, we note that as early as October 2001, the oil companies signed a MOA with
the DOE obliging themselves to:
... undertake a comprehensive and comparative study ... [which] shall include the preparation ofa
Master Plan, whose aim is to determine the scope and timing of the feasible location of the
Pandacan oil terminals and all associated facilities and infrastructure including government support
essential for the relocation such as the necessary transportation infrastructure, land and right of way
acquisition, resettlement of displaced residents and environmental and social acceptability which
shall be based on mutual benefit of the Parties and the public.
such that:
Now that they are being compelled to discontinue their operations in the Pandacan Terminals, they
cannot feign unreadiness considering that they had years to prepare for this eventuality.137
On the matter of the details of the relocation, the Court gave the oil companies the following time
frames for compliance:
To ensure the orderly transfer, movement and relocation of assets and personnel, the intervenors
Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation shall, within
a nonextendible period of ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39,
the comprehensive plan and relocation schedule which have allegedly been prepared. The presiding
judge of Manila RTC, Branch 39 will monitor the strict enforcement of this resolution. 138
The periods were given in the Decision in G.R. No. 156052 which became final on 23 April 2009.
Five years have passed, since then. The years of non-compliance may be excused by the swing of
local legislative leads. We now stay the sway and begin a final count.
A comprehensive and well-coordinated plan within a specific timeframe shall, therefore, be observed
in the relocation of the Pandacan Terminals. The oil companies shall begiven a fresh non-extendible
period of forty-five (45) days from notice within which to submit to the Regional Trial Court, Branch
39, Manila an updated comprehensive plan and relocation schedule. The relocation, inturn, shall be
completed not later than six months from the date of their submission. Finally, let it be underscored
that after the last Manifestation filed by Shell informing this Court that respondent former Mayor Lim
vetoed Ordinance No. 8283 for the second time, and was anticipating its referral to the President for
the latters consideration, nothing was heard from any of the parties until the present petitions as to
the status of the approval or disapproval of the said ordinance. As it is, the fate of the Pandacan
Terminals remains dependent on this final disposition of these cases.
VI
On the matter of the failure of Atty. Gempis to immediately comply with the directives of this Court to
file the Memorandum for the Vice-Mayor and the city councilors who voted in favor of the assailed
Ordinance, the records do not bear proof that he received a copy of any of the resolutions pertaining
to the filing of the Memorandum.
A narration of the events from his end would show, however, that he was aware of the directive
issued in 2009 when he stated that "when the City Legal Officer filed its Memorandum dated 8
February 2010, [he] thought the filing of a Memorandum for the other respondent city officials could
be dispensed with."139 There was also a categorical admission that he received the later Resolution
of 31 May 2011 but that he could not prepare a Memorandum defending the position of respondents
vice-mayor and the city councilors who voted in favor of Ordinance No. 8187 in view of the ongoing
drafting of Ordinance No. 8283, which would change the position of the Sanggunian, if subsequently
approved.
The reasons he submitted are notimpressed with merit.
That he was not officially designated as the counsel for the vicemayor and the city councilors is
beside the point. As an officer of the court, he cannot feign ignorance of the fact that"a resolution of
this Court is not a mere request but an order which should be complied with promptly and
completely."140 As early as 2009, he should have immediately responded and filed a Manifestation
and therein set forth his reasons why he cannot represent the vice-mayor and the city councilors.
And, even assuming that the 31 May 2011 Resolution was the first directive he personally received,
he had no valid excuse for disregarding the same. Worse, the Court had to issue a show cause
order before he finally heeded.
Atty. Gempis should "strive harderto live up to his duties of observing and maintaining the respect
dueto the courts, respect for law and for legal processes and of upholding the integrity and dignity of
the legal profession in order to perform his responsibilities asa lawyer effectively."141
In Sibulo v. Ilagan,142 which involves a lawyers repeated failure to comply with the directives of the
Court, the penalty recommended by the Integrated Bar of the Philippines was reduced from
suspension to reprimand and a warning. The Court ratiocinated:
Considering, however, that respondent was absolved of the administrative charge against him and
is being taken to task for his intransigence and lack of respect, the Court finds that the penalty of
suspension would not be warranted under the circumstances.
xxxx
To the Courts mind, a reprimand and a warning are sufficient sanctions for respondents
disrespectful actuations directed against the Court and the IBP. The imposition of these sanctions in
the present case would be more consistent with the avowed purpose of disciplinary case, which is
"not so much to punish the individual attorney as to protect the dispensation of justice by sheltering
the judiciary and the public from the misconduct or inefficiency of officers of the court." 143
We consider the participation of Atty. Gempis in this case and opt to be lenient even as we reiterate
the objective of protecting the dispensation of justice. We deem it sufficient to remind Atty. Gempis
to be more mindful of his duty as a lawyer towards the Court.
WHEREFORE, in light of all the foregoing, Ordinance No. 8187 is hereby declared
UNCONSTITUTIONAL and INVALID with respect to the continued stay of the Pandacan Oil
Terminals.
The incumbent mayor of the City of Manila is hereby ordered to CEASE and DESIST from enforcing
Ordinance No. 8187.1wphi1 In coordination with the appropriate government agencies and the
parties herein involved, he is further ordered to oversee the relocation and transfer of the oil
terminals out of the Pandacan area.
As likewise required in G.R. No. 156052, the intervenors Chevron Philippines, Inc., Pilipinas Shell
Petroleum Corporation, and Petron Corporation shall, within a non-extendible period of forty-five
(45) days, submit to the Regional Trial Court, Branch 39, Manila an updated comprehensive plan
and relocation schedule, which relocation shall be completed not later than six (6) months from the
date the required documents are submitted. The presiding judge of Branch 39 shall monitor the strict
enforcement of this Decision.
For failure to observe the respect due to the Court, Atty. Luch R. Gempis, Jr., Secretary of the
Sangguniang Panlungsod, is REMINDED of his duties towards the Court and WARNED that a
repetition of an act similar to that here committed shall be dealt with more severely.
SO ORDERED.
G.R. No. 79732 November 8, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS, HENRICO UVERO, ET AL., respondents.
The Solicitor General for petitioner.
Raymundo T. Nagrampa for private respondents.
VITUG, J.:
The Republic of the Philippines has sought the expropriation of certain portions of land owned by
the private respondents for the widening and concreting of the Nabua-Bato-Agos Section,
Philippine-Japan Highway Loan (PJHL) road. While the right of the Republic is not now disputed, the
private respondents, however, demand that the just compensation for the property should be based
on fair market value and not that set by Presidential Decree No. 76, as amended, which fixes
payment on the basis of the assessment by the assessor or the declared valuation by the owner,
whichever is lower. The Regional, Trial Court ruled for the private respondents. When elevated to it,
the Court of Appeals affirmed the trial court's decision.
Hence, the instant petition by the Republic.
In Export Processing Zone Authority ("EPZA") vs. Dulay, etc. et al., 1 this Court held the
determination of just compensation in eminent domain to be a judicial function and it thereby
declared Presidential Decree No. 76, as well as related decrees, including Presidential Decree No.
1533, to the contrary extent, as unconstitutional and as an impermissible encroachment of judicial
prerogatives. The ruling, now conceded by the Republic was reiterated in subsequent cases. 2
The petition for review, despite the aforesaid pronouncement by this Court, has been given due
course upon the pleas of the Solicitor General to have us address the following concerns:
I treated as an administrative complaint, "did not involve matters attributable to him, and for which,
EFFECT OF JUDICIAL DECLARATION OF PD 1533 AS
UNCONSTITUTIONAL AND VOID; UP TO WHEN RETROACTIVELY;
EFFECT ON A PENDING APPEALED CASE WHERE
CONSTITUTIONALITY OF PD 1533 NOT ASSAILED BEFORE
COURT A QUO.
II
WHETHER OR NOT THE DECISION OF THIS HONORABLE COURT
IN EPZA VS. HON. DULAY, ETC., ET AL. (G.R. NO. 59603, APRIL 29,
1987) DECLARING PD 1533 UNCONSTITUTIONAL AND VOID, BE
APPLIED IN THIS CASE.
III
WHETHER OR NOT VALUATION OF LAND SOUGHT FOR
EXPROPRIATION AS APPEARING ON THE TAX DECLARATION BE
USED AS PRELIMINARY BASIS FOR THE TEN PER CENT (10%)
DEPOSIT REQUIRED UNDER RULE 67 OF THE REVISED RULES OF
COURT, AS AMENDED BEFORE PLAINTIFF IS PERMITTED ENTRY
THEREON.
The last item is not an issue; being merely provisional in character, the matter has not been
questioned by the private respondents. 3 We will thus limit ourselves to the first two issues which, in
turn, really boil down to whether the declaration of nullity of the law in question should have
prospective, not retroactive, application. The petitioner proposes the affirmative.
Instruction is the brief treatise made by Mr. Justice Isagani A. Cruz, whose words we quote
There are two views on the effects of a declaration of the
unconstitutionality of a statute.
The first is the orthodox view. Under this rule, as announced in Norton v.
Shelby, an unconstitutional act is not a law; it confers no right; it imposes
no duties; it affords no protection; it creates no office; it is, in legal
contemplation, inoperative, as if it had not been passed. It is therefore
stricken from the statute books and considered never to have existed at
all. Not only the parties but all persons are bound by the declaration of
unconstitutionality, which means that no one may thereafter invoke it nor
may the courts be permitted to apply it in subsequent cases. It is, in other
words, a total nullity.
The second or modern view is less stringent. Under this view, the court
in passing upon the question of constitutionality does not annul or repeal
the statute if it finds it in conflict with the Constitution. It simply refuses to
recognize it and determines the rights of the parties just as if such statute
had no existence. The court may give its reasons for ignoring or
disregarding the law, but the decision affects the parties only and there is
no judgment against the statute. The opinion or reasons of the court may
operate as a precedent for the determination of other similar cases, but it
does not strike the statute from the statute books; it does not repeal,
supersede, revoke, or annul the statute. The parties to the suit are
concluded by the judgment, but no one else is bound.
The orthodox view is expressed in Article 7 of the Civil Code, providing
that "when the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern. . . . 4
The strict view considers a legislative enactment which is declared unconstitutional as being, for all
legal intents and purposes, a total nullity, and it is deemed as if had never existed. Here, of course,
we refer to the law itself being per se repugnant to the Constitution. It is not always the case,
however, that a law is constitutionally faulty per se. Thus, it may well be valid in its general import.
but invalid in its application to certain factual situations. To exemplify, an otherwise valid law may be
held unconstitutional only insofar as it is allowed to operate retrospectively such as, in pertinent
cases, when it vitiates contractually vested rights. To that extent, its retroactive application may be
so declared invalid as impairing the obligations of contracts. 5
A judicial declaration of invalidity, it is also true, may not necessarily obliterate all the effects and
consequences of a void act occurring prior to such a declaration. Thus, in our decisions on
the moratorium laws,6 we have been constrained to recognize the interim effects of said laws prior to
their declaration of unconstitutionality, but there we have likewise been unable to simply ignore
strong considerations of equity and fair play. So also, even as a practical matter, a situation that
may aptly be described as fait accompli may no longer be open for further inquiry, let alone to be
unsettled by a subsequent declaration of nullity of a governing statute.
The instant controversy, however, is too far distant away from any of the above exceptional cases.
To this day, the controversy between the petitioner and the private respondents on the issue of just
compensation is still unresolved, partly attributable to the instant petition that has prevented the
finality of the decision appealed from. The fact of the matter is that the expropriation cases, involved
in this instance, were still pending appeal when the EPZA ruling was rendered and forthwith invoked
by said parties.
In fine, we hold that the appellate court in this particular case committed no error in its appealed
decision.
WHEREFORE, the instant petition is dismissed. No costs.
SO ORDERED.
ADJUDICATION
(rel. jurisdiction, Court Administration)
DECISIONS
A.M. No. 00-8-05-SC January 31, 2002
RE: PROBLEM OF DELAYS IN CASES BEFORE THE SANDIGANBAYAN.
RESOLUTION
PARDO, J. :
What is before the Court is Sandiganbayan Presiding Justice Francis E. Garchitorenas "Clarification
and Motion for Reconsideration"1 praying that the Court modify and reconsider its resolution of
November 28, 2001, imposing on him a fine of twenty thousand pesos (P20,000.00) for inefficiency
and gross neglect of duty; temporarily relieving him of his powers, functions and duties as Presiding
Justice, Sandiganbayan and from presiding over the trial of cases as a Justice and Chairman, First
Division, so that he may devote himself exclusively to decision-writing, until the backlog of cases
assigned to him as well as cases not assigned to any ponente, of which he shall be
deemed ponente in the First Division, are finally decided.
We quote PJ Garchitorenas prayer:
"WHEREFORE, it is respectfully prayed that the Judgment of this Honorable Court be modified and
reconsidered in that:
"1. the order for him to dispose of all the cases unassigned as of the time of the audit
consisting of 36 sets of cases (or 60 individual cases) be set aside; and
"2. the fine imposed on him be likewise set aside."
The Courts Ruling
We DENY the motion.
At the heart of PJ Garchitorenas motion is that the Court denied him due process of law. PJ
Garchitorena states that:
"he was not made aware that he was at peril of sanctions, nor was he made aware of what were the
findings of the Court Administrator (right to notice) which he should explain or clarify, if clarification
was proper at all (right to be heard)."2
Essentially, PJ Garchitorena bewails the fact that he was not given notice of the charges, neither
was he given the opportunity to explain or clarify. Also, that he was "single(d) out, and with such
severity."3 PJ Garchitorena posits that he was denied equal protection of the law.
Due Process of Law
Deploring the lack of notice, PJ Garchitorena contends that the IBP Resolution, which the Court
therefore, he should not be heldaccountable."4 We disagree.
On July 31, 2000, the IBP submitted to the Court a resolution recommending that the Court "make
an inquiry into the causes of delay in the resolution of incidents and motions and in the decision of
cases before the Sandiganbayan for the purpose of enacting measures intended at avoiding such
delays."5 On August 8, 2000, the Court required PJ Garchitorena to comment on the IBP resolution
and to submit a list of all Sandiganbayan cases pending decision. PJ Garchitorena admitted the
number of cases submitted for decision but not decided as of September 2000, as follows:
"Cases Submitted For Decision"
"1st Division 341
"2nd Division 5
"3rd Division 12
"4th Division 5

"5th Division 52
"Total 415
The inquiry conducted by the Court showed: First, the Sandiganbayans First Division, of which PJ
Garchitorena is Chairman had the bulk of the backlog. 6 Second, the cases in the backlog date as far
back as ten years ago. Third, the Sandiganbayan had no accurate filing and recording system of
cases, an administrative task under the direction and control of the Presiding Justice.
We precisely enacted measures to address the IBP resolution. First, the Court ruled that cases
submitted for decision must be decided within three (3) months, not twelve (12) months, from
submission. Second, Supreme Court Administrative Circular 10-94 applied to the
Sandiganbayan. Third, the Court relieved PJ Garchitorena of administrative duties to give him time
to devote himself solely to decision-making to dispose of the backlog of cases remaining pending
before the First Division of which he is Chairman. Thus, we cannot see how the IBP Resolution did
not involve matters attributable to PJ Garchitorena for which he could be held responsible.
PJ Garchitorena could not complain that he "did not know he was at peril of sanctions." A judge
worthy of the office ought to know that he is in peril of administrative sanctions, including removal
from office, the moment he incurs delay in deciding cases. 7 Mora decidendi reprobatur in
lege. In Canson v. Garchitorena,8 we admonished PJ Garchitorena that any act that would deprive
a party of the right to a just and speedy trial shall be dealt with severely. 9 Furthermore, in the case
of Licaros v. Sandiganbayan,10 we said that Presiding Justice Garchitorena was in danger of
chastisement for delay in the decision in that case, forcing the Supreme Court to dismiss the
charges against the accused for violation of his Constitutional right to speedy disposition of
the case.
Speaking for the Court, Justice Minerva Gonzaga Reyes said:
"Rule 3.05 of Canon 3 of the Code of Judicial Conduct admonishes all judges to dispose of the
Courts business promptly and decide cases within the required periods. All judges must be
reminded that a case should be decided within ninety days from its submission, otherwise, the judge
would be guilty of gross inefficiency and neglect of duty. Failure to render a decision beyond the
ninety day (90) period from the submission of the case for decision is detrimental to the honor and
integrity of his office and in derogation of a speedy administration of justice. 11
"The members of the judiciary have the sworn duty to administer justice without undue delay. For
failing to do so, respondent judge has to suffer the consequences of his omission. Any delay in the
disposition of cases undermines the peoples faith in the judiciary. The Court has consistently
impressed upon members of the judiciary the need to decide cases promptly and expeditiously
under the time-honored precept that justice delayed is justice denied. It is the duty of every judge to
resolve cases filed before him with good dispatch. Failure to decide the case within the
reglementary period is not excusable and constitutes inefficiency warranting the imposition of
administrative sanctions on the defaulting judge." 12
Neither can we accept the view that PJ Garchitorena did not have the opportunity to be heard. He
himself filed the compliance in behalf of the Sandiganbayan that incriminated him. 13 He wrote a letter
to the Chief Justice admitting his backlog.14 Furthermore, the audit conducted by Justice Ramirez of
the OCA was based on reports and memoranda prepared by the Sandiganbayan of which he is
head of office.15 Admittedly, a reason for the delay is the non-assignment of the cases to its
respective ponente.
PJ Garchitorena does not dispute the fact that he himself provided the information used as basis for
the OCA memorandum. In his motion, he states that the reasons found by the Court Administrator in
his report of January 25, 2001 referred to conditions in the entire court; all the presiding justice could
give then was data provided by the other Divisions as well as that pertinent to the First Division. 16
Equal Protection of Laws
PJ Garchitorena complains that "he was singled out." Begrudged is how it appears to him. Truth is, it
was PJ Garchitorenas actions and inactions that singled him out. PJ Garchitorena stands out in the
entire judiciary. He gave the backlogs to the other justices unloading to them cases already
submitted for decision long ago in the guise of reorganization. Such unloading of cases submitted to
PJ Garchitorena and re-assignment to the newly appointed justices was not warranted under the
law creating additional divisions of the Sandiganbayan. First, he has been Presiding Justice for the
last sixteen (16) years. Second, the First Division he chairs suffers from the biggest backlog of both
pending and unassigned cases. He has not assigned the cases, or worse, he chose the cases to be
re-assigned or unloaded.
Functions, Responsibilities of a Presiding Justice
As Presiding Justice, PJ Garchitorena possesses vast powers of supervision, direction and control
over the Sandiganbayan.
PJ Garchitorena has no power to decide cases pending before other divisions of the
Sandiganbayan. He knew that much. Nonetheless, he possesses supervisory powers over the court
and bears responsibility for the prevailing state of affairs therein, specifically, the lack of an efficient
recording and filing system which would enable the court to monitor the flow of cases and to
manage their speedy and timely disposition. 17
PJ Garchitorena complains that we unfairly held him responsible for all the pending cases in the
other divisions of the Sandiganbayan. Our resolution contradicts his contention. We quote:
"Relief of Presiding Justice
xxx
"Presiding Justice Francis E. Garchitorena sits as the Chairman, First Division, with a backlog of
cases pending decision. At least seventy-three cases have been unassigned for the writing of the
extended opinion, though submitted for decision. It may be the thinking of the Presiding Justice,
Sandiganbayan that an unassigned case is not counted in its backlog of undecided cases. This is
not correct. It is the duty of the Presiding Justice and the Chairmen of divisions to assign
the ponente as soon as the case is declared submitted for decision, if not earlier. If he fails to make
the assignment, he shall be deemed to be the ponente.
"xxx The designation of a ponente to a case is not a difficult administrative task.
"Administrative sanctions must be imposed. "Mora reprobatur in lege."18
Again, we reiterate the principle that decision-making is the most important of all judicial functions
and responsibilities.19 In this area, Presiding Justice Francis E. Garchitorena, as
the ponente assigned to the cases submitted for decision/resolution long ago, some
as neglect of duty and inefficiency.20
"xxx According to the report of the Sandiganbayan, as of September 26, 2000, there were three
hundred forty one (341) cases submitted for decision before its first division headed by the
Presiding Justice. In the memorandum of the OCA, there were one hundred ninety eight (198)
cases reported submitted for decision before the First Division.21 Even in the updated report, there
are one hundred thirty eight (138) cases still undecided in the First Division.
"In fact, Presiding Justice Francis E. Garchitorena admitted that he has a backlog.22 He claimed that
one (1) case alone comprises fifty percent (50%) of the backlog. We find this claim exaggerated. We
cannot accept that a backlog of three hundred forty one (341) cases in the First Division could be
eliminated by the resolution of a single consolidated case of one hundred fifty six (156) counts. A
consolidated case is considered only as one case. The cases referred to were consolidated as
Criminal Case Nos. 9812-9967, People v. Corazon Gammad-Leao, decided on December 8, 2000.
What about the one hundred eighty five (185) cases that unfortunately remained undecided to this
date? Worse, the motion for reconsideration of the decision in said cases, submitted as of January
11, 2001, has not been resolved to this date. 23 The First Division has only thirty (30) days from
submission to resolve the same. It is now ten (10) months from submission. The expediente and
the motion were transmitted to the ponente, Presiding Justice Francis E. Garchitorena, on
that date, but to this day the case remains unresolved.24 Unfortunately, even other divisions of
the Sandiganbayan may be following his example. 25
"In the first report of the Court Administrator, he indicated a total of one hundred ninety five (195)
criminal cases and three (3) civil cases, or a total of one hundred ninety eight (198) cases submitted
for decision as of December 21, 2000.26 Almost a year later, as of November 16, 2001, there are still
one hundred thirty eight (138) cases undecided submitted long ago. For almost one year, not one
case was decided/resolved by the Presiding Justice himself."27
Thus, the Court mildly reprobated PJ Garchitorena for the serious delays in the adjudication of
cases pending with the Sandiganbayan which admittedly tarried for over ten (10) years from
submission for decision, characterizing it as constituting inefficiency, not to say incompetence. Now,
PJ Garchitorena says that he was not incompetent or inefficient; he was not idle, his failings were
administrative lapses, not sloth. We view it another way. As hereinabove stated, we have ruled that
a judges delay in deciding even a single case beyond the prescribed period constituted
inefficiency.28 More, we said, "a judge should perform official duties honestly, and with impartiality
and diligence. He should administer justice impartially and without delay. A magistrate should
dispose of the courts business promptly and decide cases within the required period. For justice
delayed is often justice denied, and delay in the disposition of cases erodes the faith and confidence
of the public in the institution of justice, lowers standards and brings them into disrepute. It has been
held that every judge must cultivate a capacity for quick decisions. He must not delay
by slothfulness of mind or body, the judgment which a party justly deserves. For the public trust
character of a judges office imposes upon him the highest degree of responsibility in the discharge
of his obligation to promptly administer justice. No less than the fundamental law requires that cases
be decided with dispatch. The requirement that cases be decided within a specified period from their
submission is designed to prevent delay in the administration of justice. In fact, a judge may even be
held criminally liable for malicious delay in the administration of justice." 29Even Justice Sabino
R. de Leon, Jr. temporized in Sulla v. Ramos30 that "delay in the disposition of cases erodes the faith
and confidence of our people, lowers its standards and brings it into disrepute. This Court notes
from the letters of Dr. Sulla, a fathers frustration with the justice system, having had to wait more
than two (2) years for the resolution of the case which he hopes would bring justice to his minor
daughter. Guarding against this danger is precisely the reason why this Court has repeatedly
reminded judges that failure to decide cases within the required period constitutes gross
inefficiency for which the erring judge is subject to administrative sanction." The Court imposed
a fine of 5,000.00 for a delay of two years in a single case.
Responsibility for Unloading of Cases
As to his assertion that the Court unfairly attributed to him the unloading of cases to the other
divisions,31 we made no such accusation. This is what we said: 32
"We suggest a review of the practice of unloading cases that greatly contributes to the backlog of
undecided cases. When a case has been heard and tried before a division of the Sandiganbayan, it
is ideal that the same division and no other must decide it as far as practicable."
We did not attribute fault to PJ Garchitorena. His fear is simply imagined, not real.
At any rate, as we suggested, it is not good practice to unload cases already submitted for decision
to justices still in the service. In 1995, Congress enacted Republic Act No. 7975 (implemented in
1997 with the appointment of six new justices in September 1997) increasing the number of
divisions of the Sandiganbayan to five.
The creation of two additional divisions was intended to enable the Sandiganbayan to cope with the
increasing number of cases filed, not to enable the Presiding Justice to unload submitted cases to
the new divisions. In the same manner, when Congress enacted Republic Act No. 5179, the law
creating the Circuit Criminal Courts, we ruled that the transfer of pre-selected cases to the newly
created courts could not be done.33
PJ Garchitorena feigns that he is unaware of his responsibilities and functions over judicial cases
pending before the other divisions of the Sandiganbayan. He reminds the Court that he asked for
guidance with respect to this matter but his request was not acted upon, hence, he assumed that his
understanding of his functions was correct. We "noted" PJ Garchitorenas comment filed in Lt. Col.
Lino A. Sanchez vs. Sandiganbayan.34 It does not mean that the Court agreed with him. 35 PJ
Garchitorena has no right to assume this. The term "noted" means that the Court has taken
cognizance of an act or declaration, without exercising a judicious deliberation or rendering a
decision on the matter. It does not imply agreement or approval. 36
With this resolution, we hope that the limits of the Presiding Justices responsibilities and functions
have been settled and that PJ Garchitorenas "need for enlightenment"37 has been amply satisfied.
Incompetence, Inefficiency and Gross Misconduct in Office
PJ Garchitorena posits that this Courts imputation against him of inefficiency is "unwarranted by a
clear view of the facts." PJ Garchitorena states that "he was not idle."
He explains that for a period of fourteen (14) months, from September 2000 to November 2001, he
has acted on forty-four (44) dismissals, twelve (12) of them for lack of probable cause, two (2) on
demurrers to evidence and the rest (30 cases) for withdrawals of information. Admittedly, not
one case was part of the backlog. He gives the excuse that from August 2000 to November 2001,
the First Division has been out of town six (6) times to hear cases, stating that the sessions
sometimes extended to five-thirty in the afternoon. He explains that his time has been occupied by
presiding over pre-trials, by attending to administrative matters such as review of vouchers,
attending to incoming mail and conferring with different persons. He describes his work as
"intense."38
True, the work of a Presiding Justice and Division Chairman requires meticulous attention to details.
To whom much is given, much is expected and required. PJ Garchitorena cannot recuse himself
from the task of preparing decisions and resolutions by pointing out that he was pre-occupied with
other matters. Decision-making is the primordial duty of a member of the bench. 39 No other matter
can be more important than decision-making, certainly, not reviewing vouchers and attending
to incoming mail. We stress that decision-making is the most important duty of a member of the
bench.40 PJ Garchitorena never disputed that from December 21, 2000 to November 16, 2001, or for
almost one year, not one case was decided/resolved by the Presiding Justice himself.41 In this
area, PJ Garchitorenas performance has been dismal; he has been remiss to the point of plain
inefficiency, if not incompetence. He was not idle. He attended to other matters, and more, such
as review of vouchers, attending to incoming mail and conferring with different persons. The
clerk of court or an executive assistant could very well attend to these matters. He wanted to
personally attend to the vouchers of expenses of the other justices and to his incoming mail. These
are not judicial functions. He took pride in his dispositions of incidental matters, in forty-four (44)
cases in fourteen (14) months (average: 3 cases a month), such as to determine probable cause (12
cases), act on demurrers to evidence (2 cases), and motions to withdraw information (30 cases).
We examined the papers on these cases. They were routine minutes that the clerk of court prepared
and on which he simply gave his approval and affixed his signature. Moreover, these were set on
standard forms (de cajon), that the clerk of court accomplished.
In one case that presented some difficulty, PJ Garchitorena failed to act on the case for seven long
years, since 1994 to the present.42
Precisely, he was relieved of trial work, including presiding over pre-trials, and of his administrative
duties to stress this fact. More than excusing him, his revelations justify the decision of the Court to
relieve him of tasks that prevented him from devoting his time to his real work--decision-making.
Instead of seeing his relief as a sanction, he should view it as the Courts way of aiding him to
dispose of his backlog of undecided cases long crying for attention and justice. Which is why, he
was allowed to continue to decide cases, draw his salary and allowances. If he cannot meet his
responsibilities and discharge his primordial duty of deciding cases, then he must know his
inexorable duty to do what he demanded or required of other justices of the Sandiganbayan.
Ponente of Unassigned Cases
PJ Garchitorena belittles his non-assignment of cases as a mere "administrative lapse," or an
"administrative error." We cannot see it his way. We view his inaction as serious and gross. An
administrative lapse or error, done blatantly several times over a long period of time, sixteen years
of his tenure, constitutes inefficiency to say the least.
PJ Garchitorenas inaction was not just in a single case. It was consistent, blatant and patent. We
cannot imagine why many cases submitted for decision as far back as 1990 have not been assigned
for the writing of a decision, extended opinion or resolution. 43 The law clearly states that a case
submitted for decision must be decided in ninety (90) days. 44 How can the case be decided if not
assigned? To leave it not even assigned to a ponente for more than ten years is neglect of duty
resulting in injustice to the parties. This, we cannot countenance. Meantime, the justices who heard
the case might have retired, died or were promoted.
PJ Garchitorena cited the courts reorganization in 1997, and the need to reorient the new justices
delayed his assignment of the cases. How was this possible when the cases were submitted for
decision as far back as ten years ago, long before the reorganization. How long should the re-
orientation take? The justification appears trivial. The assignment of cases is not a difficult or
complicated task. We find it worse that PJ Garchitorena blames an un-named justice of the First
Division for the backlog, who was not even appointed when the backlog accumulated, stating that
"there was no significant output from a member of this Division so that distributing the cases to him
would neither help this member, nor would the cases to be assigned to him be resolved any
earlier."45 We find the reasoning aghast. As Chairman, PJ Garchitorena had the power to take up
the cases with his colleagues in the Division. He is primus inter pares. We cannot believe that the
slow production of this un-named justice prevented the Presiding Justice from seeing to it that the
cases were disposed of. What about his own pending cases remaining undecided on the merits?
For a year, he decided not one case. If it was truly his concern to expeditiously dispose of the
backlog, he could have taken the responsibility upon himself. This finger-pointing and blame-
throwing to innocent colleagues are the hallmarks of frivolity. Such reasoning only brings the
Sandiganbayan into disrepute and betrays the dismal state of affairs therein. The position of
Presiding Justice, like that of an Executive Judge, is a privilege and a form of recognition of his
leadership qualities, but does not excuse him from complying with his constitutional duty to decide
cases within ninety (90) days from the time they were submitted for decision. 46
PJ Garchitorena recognizes that it is the Division Chairman who is tasked with the duty to assign
cases. The duty arises as soon as the case is raffled to the division, if not to a specific member.
Since he failed to make the assignment, he is deemed to have taken on the task of writing the
decision himself.1wphi1 He shall be deemed the ponente. While there was "no advantage to PJ
Garchitorena in not distributing the cases at an earlier time" 47 as he submits, still the administration
of justice is disadvantaged to the prejudice of the parties.
The Fine
The fine imposed on PJ Garchitorena is nominal. In cases where trial court judges failed to
decide even a single case within the ninety (90) day period, we imposed a fine of five thousand
pesos (5,000.00).48 Thus, the fine of twenty thousand pesos (20,000.00) cannot be deemed
unfair or excessive.
El Fallo del Tribunal
WHEREFORE, we DENY Sandiganbayan Presiding Justice Francis E. Garchitorenas "Clarification
and Motion for Reconsideration," dated December 21, 2001.
The denial is final.
SO ORDERED.
A.M. No. 11-10-1-SC March 13, 2012
In Re: Letters of Atty. Estelito P. Mendoza re: G.R. No. 178083 - Flight Attendants and
Stewards Association of the Philippines (FASAP) v. Philippine Airlines, Inc. (PAL), et al.
RESOLUTION
BRION, J.:
Before the Court is the administrative matter that originated from the letters dated September 13,
16, 20, and 22, 2011 of Atty. Estelito P. Mendoza regarding G.R. No. 178083 Flight Attendants
and Stewards Association of the Philippines v. Philippine Airlines, Inc., et al.
For a full background of the matter, the antecedent developments are outlined below.
1. The July 22, 2008 Decision
On July 22, 2008, the Courts Third Division ruled to grant 1 the petition for review on certiorari filed
by the Flight Attendants and Stewards Association of the Philippines (FASAP), finding Philippine
Airlines, Inc. (PAL) guilty of illegal dismissal. The July 22, 2008 Decision was penned by Justice
Consuelo Ynares-Santiago who was joined by the other four Members of the Third Division. The
Third Division was then composed of:
1. Justice Ynares-Santiago,
2. Justice Alicia Austria-Martinez,
3. Justice Minita Chico-Nazario,
4. Justice Antonio Eduardo Nachura, and
5. Justice Teresita Leonardo-De Castro (replacing Justice Ruben Reyes who inhibited
himself from the case).
Justice Leonardo-De Castro was included to replace Justice Ruben Reyes who had inhibited
himself from the case because he concurred in the Court of Appeals (CA) decision assailed by
FASAP before the Court.2 Then Associate Justice Renato Corona was originally designated to
replace Justice Ruben Reyes, but he likewise inhibited himself from participation on June July 14,
2008 due to his previous efforts in settling the controversy when he was still in Malacaan. Under
Administrative Circular (AC) No. 84-2007, one additional Member needed be drawn from the rest of
the Court to replace the inhibiting Member.3 In this manner, Justice Leonardo-De Castro came to
participate in the July 22, 2008 Decision.
PAL subsequently filed its motion for reconsideration (MR) of the July 22, 2008 Decision. The
motion was handled by the Special Third Division composed of:
1. Justice Ynares-Santiago,
2. Justice Chico-Nazario,
3. Justice Nachura,
4. Justice Diosdado Peralta (replacing Justice Austria-Martinez who retired on April 30,
2009), and
5. Justice Lucas Bersamin (replacing Justice Leonardo-De Castro who inhibited at the
MR stage for personal reasons on July 28, 2009).
2. The October 2, 2009 Resolution
Justice Ynares-Santiago, as the ponente of the July 22, 2008 Decision, continued to act as the
ponente of the case.4
The Special Third Division5 denied the MR with finality on October 2, 2009.6 The Court further
declared that "[n]o further pleadings will be entertained." 7 The other Members of the Special Third
Division unanimously concurred with the denial of the motion.
To fully explain the movements in the membership of the division, the Special Third Division missed
Justice Austria-Martinez (who was among those who signed the July 22, 2008 Decision) due to her
intervening retirement on April 30, 2009. Justice Leonardo-De Castro also did not participate in
resolving the 1st MR, despite having voted on the July 22, 2008 Decision, because of her own
subsequent inhibition on July 28, 2009.8
3. PALs 2nd MR
On November 3, 2009, PAL asked for leave of court to file (a) an MR of the October 2, 2009
Resolution, and (b) a 2nd MR of the July 22, 2008 Decision. Both rulings were anchored on the
validity of PALs retrenchment program.
In view of the retirement of the ponente, Justice Ynares-Santiago (who retired on October 5, 2009),
the Courts Raffle Committee9 had to resolve the question of who would be the new ponente of the
case.
Under A.M. No. 99-8-09-SC (Rules on Who Shall Resolve Motions for Reconsideration in Cases
Assigned to the Divisions of the Court, effective April 1, 2000), if the ponente has retired, he/she
shall be replaced by another Justice who shall be chosen by raffle from among the remaining
Members of the Division:
2. If the ponente is no longer a member of the Court or is disqualified or has inhibited himself from
acting on the motion, he shall be replaced by another Justice who shall be chosen by raffle from
among the remaining members of the Division who participated and concurred in the rendition of the
decision or resolution and who concurred therein. If only one member of the Court who participated
and concurred in the rendition of the decision or resolution remains, he shall be designated as the
ponente.
However, on November 11, 2009, the case was raffled, not to a Member of the Third Division that
issued the July 22, 2008 Decision or to a Member of the Special Third Division that rendered the
October 2, 2009 Resolution, but to Justice Presbitero Velasco, Jr. who was then a Member of the
newly-constituted regular Third Division.10
In raffling the case to Justice Velasco, the Raffle Committee considered the above-quoted rule
inapplicable because of the express excepting qualification provided under A.M. No. 99-8-09-SC
that states:
[t]hese rules shall not apply to motions for reconsideration of decisions or resolutions already denied
with finality. [underscoring ours]
Stated otherwise, when the original ponente of a case retires, motions filed after the case has been
denied with finality may be resolved by any Member of the Court to whom the case shall be raffled,
not necessarily by a Member of the same Division that decided or resolved the case. Presumably,
the logic behind the rule is that no further change can be made involving the merits of the case, as
judgment has reached finality and is thus irreversible, based on the Rules of Court provision that
"[n]o second MR of a judgment or final resolution by the same party shall be entertained." 11 (The
October 2, 2009 Resolution denying PALs 1st MR further stated that "[n]o further pleadings will be
entertained.") Thus, the resolution of post-decisional matters in a case already declared final may be
resolved by other Members of the Court to whom the case may be raffled after the retirement of the
original ponente.
Given the denial of PALs 1st MR and the declaration of finality of the Courts July 22, 2008 Decision
through the October 2, 2009 Resolution, the Raffle Committee found it unnecessary to create a
special Third Division. Thus, it found nothing irregular in raffling the case to Justice Velasco (who did
not take part in the deliberation of the Decision and the Resolution) of the reorganized Third Division
for handling by a new regular division.
4. The acceptance of PALs 2nd MR
On January 20, 2010 (or while A.M. No. 99-8-09-SC was still in effect), the new regular Third
Division, through Justice Velasco, granted PALs Motion for Leave to File and Admit Motion for
Reconsideration of the Resolution dated 2 October 2009 and 2 nd Motion for Reconsideration of
Decision dated 22 July 2008. The Courts Third Division further required the respective parties to
comment on PALs motion and FASAPs Urgent Appeal dated November 23, 2009. This grant,
which opened both the Decision and the Resolution penned by Justice Ynares-Santiago for review,
effectively opened the whole case for review on the merits.
The following were the Members of the Third Division that issued the January 20, 2010 Resolution:
1. Justice Antonio Carpio (vice Justice Corona who inhibited himself as of July 14,
2008),
2. Justice Velasco (ponente),
3. Justice Nachura,
4. Justice Peralta, and
5. Justice Bersamin.
Significantly, at the time leave of court was granted (which was effectively an acceptance for review
of PALs 2nd MR), the prohibition against entertaining a 2nd MR under Section 2, Rule 52 12 (in
relation with Section 4, Rule 5613 ) of the Rules of Court applied. This prohibition, however, had been
subject to various existing Court decisions that entertained 2nd MRs in the higher interest of
justice.14 This liberalized policy was not formalized by the Court until the effectivity of the Internal
Rules of the Supreme Court (IRSC) on May 4, 2010. 15
With the acceptance of PALs 2nd MR, the question that could have arisen (but was not asked then)
was whether the general rule under A.M. No. 99-8-09-SC (which was then still in effect) should have
applied so that the case should have been transferred to the remaining Members of the Division that
ruled on the merits of the case. In other words, with the re-opening of the case for review on the
merits, the application of the excepting qualification under A.M. No. 99-8-09-SC that the Raffle
Committee cited lost its efficacy, as the rulings of the Court were no longer final for having been
opened for further review.
A necessary implication is that either the Clerk of Court or the Raffle Committee should have
advised Justice Velasco that his Division should refer the case back to raffle for referral of the case
to the original Justices who participated in the assailed Decision and Resolution under the terms of
the general rule under A.M. No. 99-8-09-SC; the Justices who participated in the assailed Decision
and Resolution were the best ones to consider the motion and to review their own rulings. This was
the first major error that transpired in the case and one that the Clerk of Court failed to see.
Parenthetically, when PALs 2nd MR was filed and when it was subsequently accepted, Justices
Nachura, Peralta, and Bersamin were the only remaining Members of the Special Third Division that
rendered the October 2, 2009 Resolution. Of these three Justices, only Justice Nachura was a
Member of the original Third Division that issued the main decision on July 22, 2008. The case
should have gone to Justice Nachura or, at the very least, to the two other remaining Justices. The
re-raffle of the FASAP case to Justice Nachura (or to Justices Peralta and Bersamin) would have
been consistent with the constitutional rule that "[c]ases or matters heard by a division shall be
decided or resolved with the concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon[.]" 16
5. The Reorganization of the Court
In May 2010, three developments critical to the FASAP case transpired.
The first was the approval of the IRSC by the Court on May 4, 2010. The IRSC codified the
procedural rules of the Court, heretofore existing under various separate and scattered resolutions.
Its relevant terms took the place of A.M. No. 99-8-09-SC.
The second was the retirement of then Chief Justice Reynato Puno and the appointment as Chief
Justice of then Associate Justice Corona.
The third was the reorganization of the divisions of the Court under Special Order No. 838 dated
May 17, 2010. Justice Velasco was transferred from the Third Division to the First Division. Pursuant
to the new IRSC, Justice Velasco brought with him the FASAP case so that the case went from the
Third Division to the First Division:
RULE 2. THE OPERATING STRUCTURES
Section 9. Effect of reorganization of Divisions on assigned cases. In the reorganization of the
membership of Divisions, cases already assigned to a Member-in-Charge shall be transferred to the
Division to which the Member-in-Charge moves, subject to the rule on the resolution of motions for
reconsideration under Section 7 of this Rule. The Member-in-Charge is the Member given the
responsibility of overseeing the progress and disposition of a case assigned by raffle.
Another significant development in the case came on January 17, 2011 (or under the new regime of
the IRSC) when Justice Velasco, after acting on the FASAP case for almost one whole year,
inhibited himself from participation "due to a close relationship to a party," despite his previous
action on the case. The pertinent provisions of the IRSC on the matter of inhibition state:
RULE 2.
THE OPERATING STRUCTURES
Section 7. Resolutions of motions for reconsideration or clarification of decisions or signed
resolutions and all other motions and incidents subsequently filed; creation of a Special Division.
Motions for reconsideration or clarification of a decision or of a signed resolution and all other
motions and incidents subsequently filed in the case shall be acted upon by the ponente and the
other Members of the Division who participated in the rendition of the decision or signed resolution.
If the ponente has retired, is no longer a Member of the Court, is disqualified, or has inhibited
himself or herself from acting on the motion for reconsideration or clarification, he or she shall be
replaced through raffle by a new ponente who shall be chosen [from] among the new Members of
the Division who participated in the rendition of the decision or signed resolution remains, he or she
shall be designated as the new ponente.
If a Member (not the ponente) of the Division which rendered the decision or signed resolution has
retired, is no longer a Member of the Court, is disqualified, or has inhibited himself or herself from
acting on the motion for reconsideration or clarification, he or she shall be replaced through raffle by
a replacement Member who shall be chosen from the other Divisions until a new Justice is
appointed as replacement for the retired Justice. Upon the appointment of a new Justice, he or she
shall replace the designated Justice as replacement Member of the Special Division.
Any vacancy or vacancies in the Special Division shall be filled by raffle from among the other
Members of the Court to constitute a Special Division of five (5) Members.
If the ponente and all the Members of the Division that rendered the Decision or signed Resolution
are no longer members of the Court, the case shall be raffled to any Member of the Court and the
motion shall be acted upon by him or her with the participation of the other Members of the Division
to which he or she belongs.
If there are pleadings, motions or incidents subsequent to the denial of the motion for
reconsideration [or] clarification, the case shall be acted upon by the ponente on record with the
participation of the other Members of the Division to which he or she belongs at the time said
pleading, motion or incident is to be taken up by the Court.
xxx
 RULE 8.
INHIBITION AND SUBSTITUTION OF MEMBERS OF THE COURT
SEC. 3. Effects of Inhibition. The consequences of an inhibition of a Member of the Court shall be
governed by these rules:
(a) Whenever a Member-in-Charge of a case in a Division inhibits himself for a just and valid
reason, the case shall be returned to the Raffle Committee for re-raffling among the Members of the
other two Divisions of the Court. (IRSC, as amended by A.M. No. 10-4-20-SC dated August 3, 2010)
[All emphasis supplied.]
The case was then referred to the Raffle Committee pursuant to Administrative Circular (AC) No.
84-2007, as stated in the Division Raffle Sheet. The pertinent provision of AC No. 84-2007 states:
2. Whenever the ponente, in the exercise of sound discretion, inhibits herself or himself from the
case for just and valid reasons other than those mentioned in paragraph 1,SEC. a to f7.above,
Resolutions
the case of motions for reconsideration or clarification of decisions or signed
resolutions
shall be returned to the Raffle Committee for re-raffling among the other Members andsame
of the all other motions and incidents subsequently filed; creation of a Special
Division. - Motions
Division with one additional Member from the other two Divisions. [underscoring and italics ours]
Reference to AC No. 84-2007, however, was erroneous. For one, the IRSC resolution
was alreadyand inalleffect
when Justice Velasco inhibited himself from participation, and the IRSC had acted uponsuperseded
already by the ponente AC and the other Members of the Division who participated in the Members of the other two (2) Divisions of the Court.
rendition of the
No. 84-2007. The prevailing IRSC, though, has an almost similar rule, with the difference that the decision
IRSC speaks of the inhibition of a Member-in-Charge or of a Member of the If the ponente
Division has
other
than
Member-in-Charge in its rule on inhibition, and did not use the ponente asinhibited himself
its reference
point.
heoforthe
seemingly trivial point carries a lot of significance, particularly in the context she shall be
FASAP
case.
Under the rule on inhibition found in Section 3, Rule 8 of the governing IRSC (as Justice Ma. the Division who participated in the rendition of the decision or
the new Members
Lourdes Sereno found in her dissenting opinion), the inhibition called for the signed
raffleresolution
to a Member andof who concurred therein. If only one Member of the Court who
the two other divisions of the Court. Thus, Justice Sereno found the subsequent participated
January and26,
concurred
he or she shall be
raffle of the case to Justice Brion to be legally correct. As discussed by the Division that issued the
September 7, 2011 Resolution (the ruling Division), however, the application of the IRSC is not as
simple as Justice Sereno views it to be. This matter is discussed at length below.
On June 21, 2011 (after the retirement of Justice Nachura on June 13, 2011), Chief Justice Corona
issued Special Order No. 1025, again reorganizing the divisions of the Court. Justice Brion was
transferred from the Third Division to the Second Division. Accordingly, the Third Division
composed of Justice Velasco, Justice Peralta, Justice Bersamin, Justice Jose Mendoza, and Justice
Sereno (who was included as additional Member) referred the FASAP case to the Second Division
where Justice Brion belonged, pursuant to Section 9, Rule 2 of the IRSC.17
Justice Carpio (the Chair of the Second Division), after voting for the January 20, 2010 Resolution
granting leave to PAL to file its 2nd MR, inhibited himself from the case on August 15, 2011. As
stated in the Division Raffle Sheet of August 15, 2011, Justice Carpio "recused himself from the
case per advice of the office of the Member-in-Charge." Justice Peralta became the replacement for
Justice Carpio, pursuant to Rule 8, Section 3 of the IRSC.
6. The September 7, 2011 Resolution and Atty. Estelito Mendozas letters
On September 7, 2011, the Court through its Second Division as then constituted resolved to
deny with finality PALs 2nd MR through an unsigned resolution. The Second Division, as then
constituted, was composed of:
1. Justice Brion (as Member-in-Charge and as Acting Chair, being the most senior
Member),
2. Justice Peralta (replacing Justice Carpio who inhibited),
3. Justice Jose Perez,
4. Justice Bersamin (replacing Justice Sereno who was on leave 18 ), and
5. Justice Mendoza (replacing Justice Bienvenido Reyes who was on leave 19 ).
On September 13, 2011, the counsel for PAL, Atty. Mendoza, sent the first of a series of
20
letters addressed to the Clerk of Court of the Supreme Court. This letter noted that, of the
Members of the Court who acted on the MR dated August 20, 2008 and who issued the Resolution
of October 2, 2009, Justices Ynares-Santiago (ponente), Chico-Nazario, and Nachura had already
retired from the Court, and the Third Division had issued a Resolution on the case dated January
20, 2010, acted upon by Justices Carpio, Velasco, Nachura, Peralta, and Bersamin. The letter then
asked whether the Court had acted on the 2nd MR and, if so, which division whether regular or
special acted and who were the chairperson and members. It asked, too, for the identity of the
current ponente or justice-in-charge, and when and for what reason he or she was designated as
ponente. It further asked for a copy of the Resolution rendered on the 2nd MR, if an action had
already been taken thereon.
On September 16, 2011, Atty. Mendoza sent his second letter, again addressed to the Clerk of
Court requesting that "copies of any Special Orders or similar issuances transferring the case to
another division, and/or designating Members of the division which resolved" its 2nd MR, in case a
resolution had already been rendered by the Court and in the event that "such resolution was issued
by a different division."
The Court received Atty. Mendozas third letter, again addressed to the Clerk of Court, on
September 20, 2011.21Atty. Mendoza stated that he received a copy of the September 7, 2011
Resolution issued by the Second Division, notwithstanding that all prior Court Resolutions he
received regarding the case had been issued by the Third Division. 22 He reiterated his request in his
two earlier letters to the Court, asking for the date and time when the Resolution was deliberated
upon and a vote taken thereon, as well as the names of the Members of the Court who had
participated in the deliberation and voted on the September 7, 2011 Resolution.
Atty. Mendoza sent his fourth and last letter dated September 22, 2011, also addressed to the Clerk
of Court, suggesting that "if some facts subject of my inquiries are not evident from the records of
the case or are not within your knowledge, that you refer the inquiries to the Members of the Court
who appear to have participated in the issuance of the Resolution of September 7, 2011, namely:
Hon. Arturo D. Brion, Hon. Jose P. Perez, Hon. Diosdado M. Peralta, Hon. Lucas P. Bersamin, and
Hon. Jose C. Mendoza."
On September 26, 2011, the Clerk of Court issued the Vidal-Anama23 Memorandum to the Members
of the Second Division in relation to the inquiries contained in the first and second letters of Atty.
Mendoza dated September 13 and 20, 2011. Justice Brion also furnished the Members of the ruling
Division a copy of the Vidal-Anama Memorandum.
The Vidal-Anama Memorandum explained the events that transpired and the actions taken, which
resulted in the transfer of the case from its original ponente, Justice Ynares-Santiago, to Justice
Velasco, and eventually to Justice Brion. Attached to the Memorandum were the legal and
documentary bases for all the actions of the various raffle committees. 24 These included the
decisions of the two raffle committees on the transfer of the ponencia from Justice Ynares-Santiago
to Justice Velasco and finally to Justice Brion as a regular Second Division case.
On September 28, 2011, the Letters dated September 13 and 20, 2011 of Atty. Mendoza to Atty.
Vidal (asking that his inquiry be referred to the relevant Division Members who took part on the
September 7, 2011 Resolution) were "NOTED" by the regular Second Division. The Members of the
ruling Division also met to consider the queries posed by Atty. Mendoza. Justice Brion met with the
Members of the ruling Division (composed of Justices Brion, Peralta, Perez, Bersamin, and
Mendoza), rather than with the regular Second Division (composed of Justices Carpio, Brion, Perez,
and Sereno25 ), as the former were the active participants in the September 7, 2011 Resolution.
In these meetings, some of the Members of the ruling Division saw the problems pointed out above,
some of which indicated that the ruling Division might have had no authority to rule on the case.
Specifically, their discussions centered on the application of A.M. No. 99-8-09-SC for the incidents
that transpired prior to the effectivity of the IRSC, and on the conflicting rules under the IRSC
Section 3, Rule 8 on the effects of inhibition and Section 7, Rule 2 on the resolution of MRs.
A.M. No. 99-8-09-SC indicated the general rule that the re-raffle shall be made among the other
Members of the same Division who participated in rendering the decision or resolution and who
concurred therein, which should now apply because the ruling on the case is no longer final after the
case had been opened for review on the merits. In other words, after acceptance by the Third
Division, through Justice Velasco, of the 2nd MR, there should have been a referral to raffle
because the excepting qualification that the Clerk of Court cited no longer applied; what was being
reviewed were the merits of the case and the review should be by the same Justices who had
originally issued the original Decision and the subsequent Resolution, or by whoever of these
Justices are still left in the Court, pursuant to the same A.M. No. 99-8-09-SC.
On the other hand, the raffle to Justice Brion was made by applying AC No. 84-2007 that had been
superseded by Section 3, Rule 8 of the IRSC. Even the use of this IRSC provision, however, would
not solve the problem, as its use still raised the question of the provision that should really apply in
the resolution of the MR: should it be Section 3, Rule 8 on the inhibition of a Member-in-Charge, or
Section 7, Rule 2 of the IRSC on the inhibition of the ponente when an MR of a decision and a
signed resolution was filed. These two provisions are placed side-by-side in the table below for
easier and clearer comparison, with emphasis on the more important words:
RULE 2 RULE 8
THE OPERATING STRUCTURES INHIBITION AND SUBSTITUTION OF MEMBE
SEC. 3. Effects of inhibition. - The consequences of an in
Court shall be governed by these rules:
for reconsideration or clarification of a decision or of a signed (a) Whenever a Member-in-Charge of a case in a Division
other motions and incidents subsequently filed in the case shall be valid reason, the case shall be returned to the Raffle Com
or signed resolution. xxx
retired,
the is no longer a Member of the Court, is disqualified, or has
or herself
This from acting on the motion for reconsideration or clarification,
replaced through raffle by a new ponente who shall be chosen among
of
2011 in the rendition of the decision or signed resolution remains,
designated as the new ponente.
A comparison of these two provisions shows the semantic sources of the seeming conflict: Section
7, Rule 2 refers to a situation where the ponente has retired, is no longer a Member of the Court, is
disqualified, or has inhibited himself from acting on the case; while Section 3, Rule 8 generally refers
to the inhibition of a Member-in-Charge who does not need to be the writer of the decision or
resolution under review.
Significantly, Section 7, Rule 2 expressly uses the word ponente (not Member-in-Charge) and refers
to a specific situation where the ponente (or the writer of the Decision or the Resolution) is no longer
with the Court or is otherwise unavailable to review the decision or resolution he or she wrote.
Section 3, Rule 8, on the other hand, expressly uses the term Member-in-Charge and generally
refers to his or her inhibition, without reference to the stage of the proceeding when the inhibition is
made.
Under Section 7, Rule 2, the case should have been re-raffled and assigned to anyone of Justices
Nachura (who did not retire until June 13, 2011), Peralta, or Bersamin, either (1) after the
acceptance of the 2nd MR (because the original rulings were no longer final); or (2) after Justice
Velascos inhibition because the same condition existed, i.e., the need for a review by the same
Justices who rendered the decision or resolution. As previously mentioned, Justice Nachura
participated in both the original Decision and the subsequent Resolution, and all three Justices were
the remaining Members who voted on the October 2, 2009 Resolution. On the other hand, if Section
3, Rule 8 were to be solely applied after Justice Velascos inhibition, the Clerk of Court would be
correct in her assessment and the raffle to Justice Brion, as a Member outside of Justice Velascos
Division, was correct.
These were the legal considerations that largely confronted the ruling Division in late September
2011 when it deliberated on what to do with Atty. Mendozas letters.
The propriety of and grounds for the recall of the September 7, 2011 Resolution
Most unfortunately, the above unresolved questions were even further compounded in the course of
the deliberations of the Members of the ruling Division when they were informed that the parties
received the ruling on September 19, 2011, and this ruling would lapse to finality after the 15th day,
or after October 4, 2011.
Thus, on September 30, 2011 (a Friday), the Members went to Chief Justice Corona and
recommended, as a prudent move, that the September 7, 2011 Resolution be recalled at the very
latest on October 4, 2011, and that the case be referred to the Court en banc for a ruling on the
questions Atty. Mendoza asked. The consequence, of course, of a failure to recall their ruling was
for that Resolution to lapse to finality. After finality, any recall for lack of jurisdiction of the ruling
Division might not be understood by the parties and could lead to a charge of flip-flopping against
the Court. The basis for the referral is Section 3(n), Rule 2 of the IRSC, which provides:
RULE 2.
OPERATING STRUCTURES
Section 3. Court en banc matters and cases. The Court en banc shall act on the following matters
and cases:
xxxx
(n) cases that the Court en banc deems of sufficient importance to merit its attention[.]
Ruling positively, the Court en banc duly issued its disputed October 4, 2011 Resolution recalling
the September 7, 2011 Resolution and ordering the re-raffle of the case to a new Member-in-
Charge. Later in the day, the Court received PALs Motion to Vacate (the September 7, 2011 ruling)
dated October 3, 2011. This was followed by FASAPs MR dated October 17, 2011 addressing the
Court Resolution of October 4, 2011. The FASAP MR mainly invoked the violation of its right to due
process as the recall arose from the Courts ex parte consideration of mere letters from one of the
counsels of the parties.
As the narration in this Resolution shows, the Court acted on its own pursuant to its power to recall
its own orders and resolutions before their finality. The October 4, 2011 Resolution was issued to
determine the propriety of the September 7, 2011 Resolution given the facts that came to light after
the ruling Divisions examination of the records. To point out the obvious, the recall was not a ruling
on the merits and did not constitute the reversal of the substantive issues already decided upon by
the Court in the FASAP case in its previously issued Decision (of July 22, 2008) and Resolution (of
October 2, 2009). In short, the October 4, 2011 Resolution was not meant and was never intended
to favor either party, but to simply remove any doubt about the validity of the ruling Divisions action
on the case. The case, in the ruling Divisions view, could be brought to the Court en banc since it is
one of "sufficient importance"; at the very least, it involves the interpretation of conflicting provisions
of the IRSC with potential jurisdictional implications.
At the time the Members of the ruling Division went to the Chief Justice to recommend a recall, there
was no clear indication of how they would definitively settle the unresolved legal questions among
themselves. The only matter legally certain was the looming finality of the September 7, 2011
Resolution if it would not be immediately recalled by the Court en banc by October 4, 2011. No
unanimity among the Members of the ruling Division could be gathered on the unresolved legal
questions; thus, they concluded that the matter is best determined by the Court en banc as it
potentially involved questions of jurisdiction and interpretation of conflicting provisions of the IRSC.
To the extent of the recommended recall, the ruling Division was unanimous and the Members
communicated this intent to the Chief Justice in clear and unequivocal terms.
Given this background, the Clerk of Court cannot and should not be faulted for her recommended
position, as indeed there was a ruling in the 1st MR that declared the original ruling on the case
final. Perhaps, she did not fully realize that the ruling on the 1st MR varied the terms of the original
Decision of July 22, 2008; she could not have considered, too, that a subsequent 2nd MR would be
accepted for the Courts further consideration of the case on the merits.
Upon acceptance of the 2nd MR by the Third Division through Justice Velasco, the Clerk of Court
and the Raffle Committee, however, should have realized that Justice Velasco was not the proper
Member-in-Charge of the case and another raffle should have been held to assign the case to a
Justice who participated in the original Decision of July 22, 2008 or in the Resolution of October 2,
2009. This realization, unfortunately, did not dawn on the Clerk of Court.
For practically the same reasons, the Third (or Velasco) Division, with Justice Velasco as Member-
in-Charge, cannot and should not be faulted for accepting the 2nd MR; the variance introduced by
the ruling on the 1st MR and the higher interest of justice (in light alone of the gigantic amount
involved) appeared to justify further consideration of the case. Recall that at that time, the IRSC was
not yet in existence and a specific rule under the IRSC on the handling of 2nd MRs was yet to be
formulated, separately from the existing jurisprudential rulings. Justice Velasco, though, could not
have held on to the case after its merits were opened for new consideration, as he was not the
writer of the assailed Decision and Resolution, nor was he a Member of the Division that acted on
the case. Under A.M. No. 99-8-09-SC, the rightful ponente should be a remaining Member of the
Division that rendered the decision or resolution.
With Justice Velascos subsequent inhibition, a legal reason that the involved officials and Justices
should have again recognized is the rationale of the rule on replacements when an inhibition or
retirement intervenes. Since the inhibiting Justice was only the Member-in-Charge and was
technically merely a nominal ponente26 in so far as the case is concerned (because he was not the
writer of the Decision and Resolution under consideration), the raffle should have been confined
among the Members who actually participated in ruling on the merits of the original Decision or of
the subsequent Resolution. At that point, only Justices Peralta and Bersamin were left because all
the other Members of the original ruling groups had retired. Since under the IRSC 27 and Section
4(3), Article VIII of the Constitution, the case should have been decided by the Members who
actually took part in the deliberations, the ruling on the merits made by the ruling Division on
September 7, 2011 was effectively void and should appropriately be recalled.
To summarize all the developments that brought about the present dispute expressed in a format
that can more readily be appreciated in terms of the Court en bancs ruling to recall the September
7, 2011 ruling the FASAP case, as it developed, was attended by special and unusual
circumstances that saw:
(a) the confluence of the successive retirement of three Justices (in a Division of five
Justices) who actually participated in the assailed Decision and Resolution;
(b) the change in the governing rules from the A.M.s to the IRSC regime which
transpired during the pendency of the case;
(c) the occurrence of a series of inhibitions in the course of the case (Justices Ruben
Reyes, Leonardo-De Castro, Corona, Velasco, and Carpio), and the absences of
Justices Sereno and Reyes at the critical time, requiring their replacement; notably,
Justices Corona, Carpio, Velasco and Leonardo-De Castro are the four most senior
Members of the Court;
(d) the three re-organizations of the divisions, which all took place during the pendency
of the case, necessitating the transfer of the case from the Third Division, to the First,
then to the Second Division;
(e) the unusual timing of Atty. Mendozas letters, made after the ruling Division had
issued its Resolution of September 7, 2011, but before the parties received their
copies of the said Resolution; and
(f) finally, the time constraint that intervened, brought about by the parties receipt on
September 19, 2011 of the Special Divisions Resolution of September 7, 2011, and
the consequent running of the period for finality computed from this latter date; and the
Resolution would have lapsed to finality after October 4, 2011, had it not been recalled
by that date.
All these developments, in no small measure, contributed in their own peculiar way to the confusing
situations that attended the September 7, 2011 Resolution, resulting in the recall of this Resolution
by the Court en banc.
On deeper consideration, the majority now firmly holds the view that Section 7, Rule 2 of the IRSC
should have prevailed in considering the raffle and assignment of cases after the 2nd MR was
accepted, as advocated by some Members within the ruling Division, as against the general rule on
inhibition under Section 3, Rule 8. The underlying constitutional reason, of course, is the
requirement of Section 4(3), Article VIII of the Constitution already referred to above. 28
The general rule on statutory interpretation is that apparently conflicting provisions should be
reconciled and harmonized,29 as a statute must be so construed as to harmonize and give effect to
all its provisions whenever possible.30 Only after the failure at this attempt at reconciliation should
one provision be considered the applicable provision as against the other.31
Applying these rules by reconciling the two provisions under consideration, Section 3, Rule 8 of the
IRSC should be read as the general rule applicable to the inhibition of a Member-in-Charge. This
general rule should, however, yield where the inhibition occurs at the late stage of the case when a
decision or signed resolution is assailed through an MR. At that point, when the situation calls for
the review of the merits of the decision or the signed resolution made by a ponente (or writer of the
assailed ruling), Section 3, Rule 8 no longer applies and must yield to Section 7, Rule 2 of the IRSC
which contemplates a situation when the ponente is no longer available, and calls for the referral of
the case for raffle among the remaining Members of the Division who acted on the decision or on
the signed resolution. This latter provision should rightly apply as it gives those who intimately know
the facts and merits of the case, through their previous participation and deliberations, the chance to
take a look at the decision or resolution produced with their participation.
To reiterate, Section 3, Rule 8 of the IRSC is the general rule on inhibition, but it must yield to the
more specific Section 7, Rule 2 of the IRSC where the obtaining situation is for the review on the
merits of an already issued decision or resolution and the ponente or writer is no longer available to
act on the matter. On this basis, the ponente, on the merits of the case on review, should be chosen
from the remaining participating Justices, namely, Justices Peralta and Bersamin.
A final point that needs to be fully clarified at this juncture, in light of the allegations of the Dissent is
the role of the Chief Justice in the recall of the September 7, 2011 Resolution. As can be seen from
the above narration, the Chief Justice acted only on the recommendation of the ruling Division, since
he had inhibited himself from participation in the case long before. The confusion on this matter
could have been brought about by the Chief Justices role as the Presiding Officer of the Court en
banc (particularly in its meeting of October 4, 2011), and the fact that the four most senior Justices
of the Court (namely, Justices Corona, Carpio, Velasco and Leonardo-De Castro) inhibited from
participating in the case. In the absence of any clear personal malicious participation, it is neither
correct nor proper to hold the Chief Justice personally accountable for the collegial ruling of the
Court en banc.
Another disturbing allegation in the Dissent is the implication of the alleged silence of, or lack of
objection from, the Members of the ruling Division during the October 4, 2011 deliberations, citing
for this purpose the internal en banc deliberations. The lack of a very active role in the arguments
can only be attributable to the Members of the ruling Divisions unanimous agreement to recall their
ruling immediately; to their desire to have the intricate issues ventilated before the Court en banc; to
the looming finality of their Divisions ruling if this ruling would not be recalled; and to their firm
resolve to avoid any occasion for future flip-flopping by the Court. To be sure, it was not due to any
conspiracy to reverse their ruling to affirm the previous Court rulings already made in favor of
FASAP; the Divisions response was simply dictated by the legal uncertainties that existed and the
deep division among them on the proper reaction to Atty. Mendozas letters.
Of the above-cited reasons, a major influencing factor, of course, was the time constraint the
Members of the ruling Division met with the Chief Justice on September 30, 2011, the Friday before
October 4, 2011 (the date of the closest Court en banc meeting, as well as the deadline for the
finality of the September 7, 2011 Resolution). They impressed upon the Chief Justice the urgent
need to recall their September 7, 2011 Resolution under the risk of being accused of a flip-flop if the
Court en banc would later decide to override its ruling.
As a final word, if no detailed reference to internal Court deliberations is made in this Resolution, the
omission is intentional in view of the prohibition against the public disclosure of the internal
proceedings of the Court during its deliberations. The present administrative matter, despite its
pendency, is being ventilated in the impeachment of Chief Justice Corona before the Senate acting
as an Impeachment Court, and any disclosure in this Resolution could mean the disclosure of the
Courts internal deliberations to outside parties, contrary to the clear terms of the Court en banc
Resolution of February 14, 2012 on the attendance of witnesses from this Court and the production
of Court records.
CONCLUSION
In sum, the recall of the September 7, 2011 Resolution of the ruling Division was a proper and legal
move to make under the applicable laws and rules, and the indisputably unusual developments and
circumstances of the case.
Between Section 3, Article 8 and Section 7, Rule 2, both of the IRSC, the former is the general
provision on a Member-in-Charges inhibition, but it should yield to the more specific Section 7, Rule
2 in a situation where the review of an issued decision or signed resolution is called for and the
ponente or writer of these rulings is no longer available to act. Section 7, Rule 2 exactly
contemplates this situation.
WHEREFORE, premises considered, we hereby confirm that the Court en banc has assumed
jurisdiction over the resolution of the merits of the motions for reconsideration of Philippine Airlines,
Inc., addressing our July 22, 2008 Decision and October 2, 2009 Resolution; and that the
September 7, 2011 ruling of the Second Division has been effectively recalled. This case should
now be raffled either to Justice Lucas P. Bersamin or Justice Diosdado M. Peralta (the remaining
Members of the Special Third Division that originally ruled on the merits of the case) as Member-in-
Charge in resolving the merits of these motions.1wphi1
The Philippine Airlines, Inc.s Motion to Vacate dated October 3, 2011, but received by this Court
after a recall had been made, has thereby been rendered moot and academic.
The Flight Attendants and Stewards Association of the Philippines Motion for Reconsideration of
October 17, 2011 is hereby denied; the recall of the September 7, 2011 Resolution was made by the
Court on its own before the rulings finality pursuant to the Courts power of control over its orders
and resolutions. Thus, no due process issue ever arose.
SO ORDERED.
RULE-MAKING
G.R. No. 165922
BAGUIO MARKET VENDORS MULTI-PURPOSE COOPERATIVE (BAMARVEMPCO),
represented by RECTO INSO, Operations Manager, Petitioner,
vs.
HON. ILUMINADA CABATO-CORTES, Executive Judge, Regional Trial Court, Baguio
City, Respondent.
DECISION
CARPIO, J.:
The Case
For review1 are the Orders2 of the Executive Judge of the Regional Trial Court of Baguio City finding
petitioner Baguio Market Vendors Multi-Purpose Cooperative liable for payment of foreclosure fees.
The Facts
Petitioner Baguio Market Vendors Multi-Purpose Cooperative (petitioner) is a credit cooperative
organized under Republic Act No. 6938 (RA 6938), or the Cooperative Code of the
Philippines.3 Article 62(6) of RA 6938 exempts cooperatives:
from the payment of all court and sheriff's fees payable to the Philippine Government for and in
connection with all actions brought under this Code, or where such action is brought by the
Cooperative Development Authority before the court, to enforce the payment of obligations
contracted in favor of the cooperative.4
In 2004, petitioner, as mortgagee, filed with the Clerk of Court of the Regional Trial Court of Baguio
City (trial court) a petition to extrajudicially foreclose a mortgage under Act 3135, as
amended.5 Under Section 7(c) of Rule 141, as amended,6 petitions for extrajudicial foreclosure are
subject to legal fees based on the value of the mortgagees claim. Invoking Article 62 (6) of RA
6938, petitioner sought exemption from payment of the fees.
The Ruling of the Trial Court
In an Order dated 30 August 2004, Judge Iluminada Cabato-Cortes (respondent), Executive Judge
of the trial court, denied the request for exemption, citing Section 22 of Rule 141 of the Rules of
Court, as amended, exempting from the Rules coverage only the "Republic of the Philippines, its
agencies and instrumentalities" and certain suits of local government units. 7
Petitioner sought reconsideration but respondent denied its motion in the Order dated 6 October
2004. This time, respondent reasoned that petitioners reliance on Article 62(6) of RA 6938 is
misplaced because the fees collected under Rule 141 are not "fees payable to the Philippine
Government" as they do not accrue to the National Treasury but to a special fund 8 under the Courts
control.9
Hence, this petition.
Petitioner maintains that the case calls for nothing more than a simple application of Article 62(6) of
RA 6938.
The Office of the Solicitor General (OSG), in its Manifestation (in lieu of Comment), joins causes
with petitioner. The OSG submits that as the substantive rule, Article 62(6) of RA 6938 prevails over
Section 22 of Rule 141, a judicial rule of procedure. The OSG also takes issue with respondents
finding that the legal fees collected under Rule 141 are not "fees payable to the Philippine
Government" as the judiciary forms part of the Philippine government, as defined under the Revised
Administrative Code.10
Although not a party to this suit, we required the Courts Office of the Chief Attorney (OCAT) to
comment on the petition, involving as it does, issues relating to the Courts power to promulgate
judicial rules. In its compliance, the OCAT recommends the denial of the petition, opining that
Section 22, Rule 141, as amended, prevails over Article 62(6) of RA 6938 because (1) the power to
impose judicial fees is eminently judicial and (2) the 1987 Constitution insulated the Courts rule-
making powers from Congress interference by omitting in the 1987 Constitution the provision in the
1973 Constitution allowing Congress to alter judicial rules. The OCAT called attention to the Courts
previous denial of a request by a cooperative group for the issuance of "guidelines" to implement
cooperatives fees exemption under Article 62(6) of RA 6938. 11 Lastly, the OCAT recommends the
amendment of Section 22, Rule 141 to make explicit the non-exemption of cooperatives from the
payment of legal fees.
The Issue
The question is whether petitioners application for extrajudicial foreclosure is exempt from legal
fees under Article 62(6) of RA 6938.
The Ruling of the Court
We hold that Article 62(6) of RA 6938 does not apply to petitioners foreclosure proceeding.
Petitions for Extrajudicial Foreclosure
Outside of the Ambit of Article 62(6) of RA 6938
The scope of the legal fees exemption Article 62(6) of RA 6938 grants to cooperatives is limited to
two types of actions, namely: (1) actions brought under RA 6938; and (2) actions brought by the
Cooperative Development Authority to enforce the payment of obligations contracted in favor of
cooperatives. By simple deduction, it is immediately apparent that Article 62(6) of RA 6938 is no
authority for petitioner to claim exemption from the payment of legal fees in this proceeding because
first, the fees imposable on petitioner do not pertain to an action brought under RA 6938 but to a
petition for extrajudicial foreclosure of mortgage under Act 3135. Second, petitioner is not the
Cooperative Development Authority which can claim exemption only in actions to enforce payments
of obligations on behalf of cooperatives.
The Power of the Legislature
vis a vis the Power of the Supreme Court
to Enact Judicial Rules
Our holding above suffices to dispose of this petition. However, the Court En Banc has recently
ruled in Re: Petition for Recognition of the Exemption of the Government Service Insurance System
from Payment of Legal Fees12 on the issue of legislative exemptions from court fees. We take the
opportunity to reiterate our En Banc ruling in GSIS.
Until the 1987 Constitution took effect, our two previous constitutions textualized a power sharing
scheme between the legislature and this Court in the enactment of judicial rules. Thus, both the
193513 and the 197314 Constitutions vested on the Supreme Court the "power to promulgate rules
concerning pleading, practice, and procedure in all courts, and the admission to the practice of law."
However, these constitutions also granted to the legislature the concurrent power to "repeal, alter or
supplement" such rules.15
The 1987 Constitution textually altered the power-sharing scheme under the previous charters by
deleting in Section 5(5) of Article VIII Congress subsidiary and corrective power. 16 This glaring and
fundamental omission led the Court to observe in Echegaray v. Secretary of Justice17 that this
Courts power to promulgate judicial rules "is no longer shared by this Court with Congress":
The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it
enhanced the rule making power of this Court [under] Section 5(5), Article VIII 18 x x x .
The rule making power of this Court was expanded. This Court for the first time was given the power
to promulgate rules concerning the protection and enforcement of constitutional rights. The Court
was also granted for the first time the power to disapprove rules of procedure of special courts and
quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleading, practice and procedure is no longer shared by this Court with
Congress, more so with the Executive. x x x x (Italicization in the original; boldfacing supplied)
Any lingering doubt on the import of the textual evolution of Section 5(5) should be put to rest with
our recent En Banc ruling denying a request by the Government Service Insurance System (GSIS)
for exemption from payment of legal fees based on Section 39 of its Charter, Republic Act No. 8291,
exempting GSIS from "all taxes, assessments, fees, charges or dues of all kinds."19 Reaffirming
Echegarays construction of Section 5(5), the Court described its exclusive power to promulgate
rules on pleading, practice and procedure as "one of the safeguards of this Courts institutional
independence":
[T]he payment of legal fees is a vital component of the rules promulgated by this Court concerning
pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress.
As one of the safeguards of this Courts institutional independence, the power to promulgate rules of
pleading, practice and procedure is now the Courts exclusive domain. 20 x x x (Emphasis supplied)
WHEREFORE, we DENY the petition. We AFFIRM the Orders dated 30 August 2004 and 6 October
2004 of the Executive Judge of the Regional Trial Court of Baguio City.
Let a copy of this Decision be furnished the Office of the Court Administrator for circulation to all
courts.
SO ORDERED.
A.M. NO. 05-10-20-SC March 10, 2010
IN RE: EXEMPTION OF THE NATIONAL POWER CORPORATION FROM PAYMENT OF FILING/
DOCKET FEES
RESOLUTION
MENDOZA, J.:
The National Power Corporation (NPC) seeks clarification from the Court on whether or not it is
exempt from the payment of filing fees, appeal bonds and supersedeas bonds.
On December 6, 2005, the Court issued A.M. No. 05-10-20-SC, In re: Exemption of the National
Power Corporation from the Payment of Filing/Docket Fees, on the basis of Section 13, Republic
Act No. 6395 (An Act Revising the Charter of the National Power Corporation). It reads:
The Court Resolved, upon the recommendation of the Office of the Court Administrator, to
DECLARE that the National Power Corporation (NPC) is still exempt from the payment of filing fees,
appeals bond, and supersedeas bonds.
On October 27, 2009, however, the Court issued A.M. No. 05-10-20-SC stating that:
The Court Resolved, upon recommendation of the Committee on the Revision of the Rules of Court,
to DENY the request of the National Power Corporation (NPC) for exemption from the payment of
filing fees pursuant to Section 10 of Republic Act No. 6395, as amended by Section 13 of
Presidential Decree No. 938. The request appears to run counter to Section 5(5), Article VIII of the
Constitution, in the rule-making power of the Supreme Court over the rules on pleading, practice
and procedure in all courts, which includes the sole power to fix the filing fees of cases in courts.
Hence, the subject letter of NPC for clarification as to its exemption from the payment of filing fees
and court fees.
Section 22 of Rule 141 reads:
Sec. 22. Government exempt. The Republic of the Philippines, its agencies and instrumentalities
are exempt from paying the legal fees provided in this rule. Local government units and
government-owned or controlled corporations with or without independent charters are not exempt
from paying such fees. (emphasis supplied)
Section 70 of Republic Act No. 9136 (Electric Power Industry Reform Act of 2001), on privatization
of NPC assets, expressly states that the NPC "shall remain as a national government-owned and
controlled corporation."
Thus, NPC is not exempt from payment of filing fees.
The non-exemption of NPC is further fortified by the promulgation on February 11, 2010 of A.M. No.
08-2-01-0, In re: Petition for Recognition of the Exemption of the Government Service Insurance
System (GSIS) from Payment of Legal Fees. In said case, the Court, citing Echegaray v. Secretary
of Justice,1 stressed that the 1987 Constitution took away the power of Congress to repeal, alter or
supplement rules concerning pleading, practice, and procedure; and that the power to promulgate
these rules is no longer shared by the Court with Congress and the Executive, thus:
Since the payment of legal fees is a vital component of the rules promulgated by this Court
concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by
Congress. As one of the safeguards of this Courts institutional independence, the power to
promulgate rules of pleading, practice and procedure is now the Courts exclusive domain. That
power is no longer shared by this Court with Congress, much less the Executive.
Speaking for the Court, then Associate Justice (now Chief Justice) Reynato S. Puno traced the
history of the rule-making power of this Court and highlighted its evolution and development in
Echegaray v. Secretary of Justice:
Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading,
practice and procedure was granted but it appeared to be co-existent with legislative power for it
was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article
VIII provides:
Sec.13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice
and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for
all courts of the same grade and shall not diminish, increase, or modify substantive rights. The
existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are
declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same.
The Congress shall have the power to repeal, alter or supplement the rules concerning pleading,
practice and procedure, and the admission to the practice of law in the Philippines.
xxx xxx xxx
[T]he 1973 Constitution reiterated the power of this Court "to promulgate rules concerning pleading,
practice, and procedure in all courts, x x x which, however, may be repealed, altered or
supplemented by the Batasang Pambansa x x x." More completely, Section 5(2) [sic] 5 of its Article
X provided:
xxx xxx xxx
Sec. 5. The Supreme Court shall have the following powers.
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which, however, may be repealed, altered, or
supplemented by the Batasang Pambansa. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of case, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights.
xxx xxx xxx
The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it
enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:
xxx xxx xxx
Section 5. The Supreme Court shall have the following powers.
xxx xxx xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
The rule making power of this Court was expanded. This Court for the first time was given the power
to promulgate rules concerning the protection and enforcement of constitutional rights. The Court
was also granted for the first time the power to disapprove rules of procedure of special courts and
quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleading, practice and procedure is no longer shared by this Court with
Congress, more so with the Executive.
The separation of powers among the three co-equal branches of our government has erected an
impregnable wall that keeps the power to promulgate rules of pleading, practice and procedure
within the sole province of this Court. The other branches trespass upon this prerogative if they
enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules
promulgated by this Court. Viewed from this perspective, the claim of a legislative grant of
exemption from the payment of legal fees under Section 39 of RA 8291 necessarily fails.1avvphi1
With the foregoing categorical pronouncement of the Court, it is clear that NPC can no longer invoke
Republic Act No. 6395 (NPC Charter), as amended by Presidential Decree No. 938, as its basis for
exemption from the payment of legal fees.
WHEREFORE, it is hereby CLARIFIED that the National Power Corporation is not exempt from the
payment of legal fees.
SO ORDERED.
JUDICIAL AND BAR COUNCIL
G.R. No. 191002 April 20, 2010
ARTURO M. DE CASTRO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL -
ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R.
No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for
lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and
Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the
vacancy to be created by the compulsory retirement of Chief Justice
Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for
the position of Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill
other vacancies in the Judiciary and submit to the President the short list
of nominees corresponding thereto in accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R.
No. 191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated
Bar of the Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter
Irving Corvera; Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the
Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L.
Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions
for reconsideration. Also filing a motion for reconsideration was Senator Aquilino Q. Pimentel, Jr.,
whose belated intervention was allowed.
We summarize the arguments and submissions of the various motions for reconsideration, in the
aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of whether or not the
power to designate the Chief Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because it sought a mere
declaratory judgment and did not involve a justiciable controversy.
3. All Justices of the Court should participate in the next deliberations. The mere fact
that the Chief Justice sits as ex officio head of the JBC should not prevail over the
more compelling state interest for him to participate as a Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an interpretation that
exempts judicial appointments from the express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions and has
created exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII, not in Article VIII,
because it limits an executive, not a judicial, power.
4. Resort to the deliberations of the Constitutional Commission is superfluous, and is
powerless to vary the terms of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice Regalado.
Thereby, the Court has raised the Constitution to the level of a venerated text whose
intent can only be divined by its framers as to be outside the realm of understanding
by the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question
the illegal composition of the JBC.
Philippine Bar Association
1. The Courts strained interpretation of the Constitution violates the basic principle
that the Court should not formulate a rule of constitutional law broader than what is
required by the precise facts of the case.
2. Considering that Section 15, Article VII is clear and straightforward, the only duty of
the Court is to apply it. The provision expressly and clearly provides a general
limitation on the appointing power of the President in prohibiting the appointment of
any person to any position in the Government without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against
midnight appointments.
4. The Constitution has installed two constitutional safeguards:- the prohibition against
midnight appointments, and the creation of the JBC. It is not within the authority of the
Court to prefer one over the other, for the Courts duty is to apply the safeguards as
they are, not as the Court likes them to be.
5. The Court has erred in failing to apply the basic principles of statutory construction
in interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or section headings,
despite precedents on statutory construction holding that such headings carried very
little weight.
7. The Constitution has provided a general rule on midnight appointments, and the
only exception is that on temporary appointments to executive positions.
8. The Court has erred in directing the JBC to resume the proceedings for the
nomination of the candidates to fill the vacancy to be created by the compulsory
retirement of Chief Justice Puno with a view to submitting the list of nominees for Chief
Justice to President Arroyo on or before May 17, 2010. The Constitution grants the
Court only the power of supervision over the JBC; hence, the Court cannot tell the JBC
what to do, how to do it, or when to do it, especially in the absence of a real and
justiciable case assailing any specific action or inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and has indulged in
speculations.
10. The constitutional ban on appointments being already in effect, the Courts
directing the JBC to comply with the decision constitutes a culpable violation of the
Constitution and the commission of an election offense.
11. The Court cannot reverse on the basis of a secondary authority a doctrine
unanimously formulated by the Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice whenever
the incumbent is indisposed. Thus, the appointment of the successor Chief Justice is
not urgently necessary.
13. The principal purpose for the ban on midnight appointments is to arrest any
attempt to prolong the outgoing Presidents powers by means of proxies. The attempt
of the incumbent President to appoint the next Chief Justice is undeniably intended to
perpetuate her power beyond her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of the Constitution applies
to appointments to the Judiciary. Hence, no cogent reason exists to warrant the
reversal of the Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for presidential appointments to
the Constitutional Commissions and the JBC with the consent of the Commission on
Appointments. Its phrase "other officers whose appointments are vested in him in this
Constitution" is enough proof that the limitation on the appointing power of the
President extends to appointments to the Judiciary. Thus, Section 14, Section 15, and
Section 16 of Article VII apply to all presidential appointments in the Executive and
Judicial Branches of the Government.
3. There is no evidence that the framers of the Constitution abhorred the idea of an
Acting Chief Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Courts exercise of judicial
review.
2. The election ban under Section 15, Article VII applies to appointments to fill a
vacancy in the Court and to other appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the safeguard under Section
15 of Article VII against midnight appointments in the Judiciary.
Corvera
1. The Courts exclusion of appointments to the Judiciary from the Constitutional ban
on midnight appointments is based on an interpretation beyond the plain and
unequivocal language of the Constitution.
2. The intent of the ban on midnight appointments is to cover appointments in both the
Executive and Judicial Departments. The application of the principle of verba legis
(ordinary meaning) would have obviated dwelling on the organization and arrangement
of the provisions of the Constitution. If there is any ambiguity in Section 15, Article VII,
the intent behind the provision, which is to prevent political partisanship in all branches
of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained interpretation based on
compartmentalization and physical arrangement, especially considering that the
Constitution must be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of the framers of the
Constitution should yield to the plain and unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable
and in accord with the Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition
did not present a justiciable controversy. The issues it raised were not yet ripe for
adjudication, considering that the office of the Chief Justice was not yet vacant and
that the JBC itself has yet to decide whether or not to submit a list of nominees to the
President.
2. The collective wisdom of Valenzuela Court is more important and compelling than
the opinion of Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the
Court has violated the principle of ut magis valeat quam pereat (which mandates that
the Constitution should be interpreted as a whole, such that any conflicting provisions
are to be harmonized as to fully give effect to all). There is no conflict between the
provisions; they complement each other.
4. The form and structure of the Constitutions titles, chapters, sections, and
draftsmanship carry little weight in statutory construction. The clear and plain language
of Section 15, Article VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or controversy. The clash of
legal rights and interests in the present case are merely anticipated. Even if it is
anticipated with certainty, no actual vacancy in the position of the Chief Justice has yet
occurred.
2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and
the Judiciary runs in conflict with long standing principles and doctrines of statutory
construction. The provision admits only one exception, temporary appointments in the
Executive Department. Thus, the Court should not distinguish, because the law itself
makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the Constitution clearly
intended the ban on midnight appointments to cover the members of the Judiciary.
Hence, giving more weight to the opinion of Justice Regalado to reverse the en banc
decision in Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day
mandate to fill any vacancy lasts until August 15, 2010, or a month and a half after the
end of the ban. The next President has roughly the same time of 45 days as the
incumbent President (i.e., 44 days) within which to scrutinize and study the
qualifications of the next Chief Justice. Thus, the JBC has more than enough
opportunity to examine the nominees without haste and political uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article
VIII is suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or before May
17, 2010. The directive to the JBC sanctions a culpable violation of the Constitution
and constitutes an election offense.
7. There is no pressing necessity for the appointment of a Chief Justice, because the
Court sits en banc, even when it acts as the sole judge of all contests relative to the
election, returns and qualifications of the President and Vice-President. Fourteen other
Members of the Court can validly comprise the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of
nominees for Chief Justice to the President on or before May 17, 2010, and to
continue its proceedings for the nomination of the candidates, because it granted a
relief not prayed for; imposed on the JBC a deadline not provided by law or the
Constitution; exercised control instead of mere supervision over the JBC; and lacked
sufficient votes to reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of
statutory construction to the effect that the literal meaning of the law must be applied
when it is clear and unambiguous; and that we should not distinguish where the law
does not distinguish.
3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary
Act of 1948 already provides that the power and duties of the office devolve on the
most senior Associate Justice in case of a vacancy in the office of the Chief Justice.
Ubano
1. The language of Section 15, Article VII, being clear and unequivocal, needs no
interpretation
2. The Constitution must be construed in its entirety, not by resort to the organization
and arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and
the pertinent records of the Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of nominees to the
President by May 17, 2010 at the latest, because no specific law requires the JBC to
submit the list of nominees even before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban on midnight
appointments is the temporary appointment to an executive position. The limitation is
in keeping with the clear intent of the framers of the Constitution to place a restriction
on the power of the outgoing Chief Executive to make appointments.
2. To exempt the appointment of the next Chief Justice from the ban on midnight
appointments makes the appointee beholden to the outgoing Chief Executive, and
compromises the independence of the Chief Justice by having the outgoing President
be continually influential.
3. The Courts reversal of Valenzuela without stating the sufficient reason violates the
principle of stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of appointments an
outgoing President is prohibited from making within the prescribed period. Plain textual
reading and the records of the Constitutional Commission support the view that the
ban on midnight appointments extends to judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate subject to
oversight must first act not in accord with prescribed rules before the act can be
redone to conform to the prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition
did not present a justiciable controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable, rational, and
conformable to the general intent of the Constitution as a limitation to the powers of
Government and as a bastion for the protection of the rights of the people. Thus, in
harmonizing seemingly conflicting provisions of the Constitution, the interpretation
should always be one that protects the citizenry from an ever expanding grant of
authority to its representatives.
2. The decision expands the constitutional powers of the President in a manner totally
repugnant to republican constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately represent in their respective
comments, thus:
OSG
1. The JBC may be compelled to submit to the President a short list of its nominees for
the position of Chief Justice.
2. The incumbent President has the power to appoint the next Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the exemption of the Judiciary
from the ban on midnight appointments.1awph!1
5. The Court has the duty to consider and resolve all issues raised by the parties as
well as other related matters.
JBC
1. The consolidated petitions should have been dismissed for prematurity, because the
JBC has not yet decided at the time the petitions were filed whether the incumbent
President has the power to appoint the new Chief Justice, and because the JBC,
having yet to interview the candidates, has not submitted a short list to the President.
2. The statement in the decision that there is a doubt on whether a JBC short list is
necessary for the President to appoint a Chief Justice should be struck down as bereft
of constitutional and legal basis. The statement undermines the independence of the
JBC.
3. The JBC will abide by the final decision of the Court, but in accord with its
constitutional mandate and its implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the
OSG and the JBC were the only ones the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he initiated and which the Court resolved.
His comment asserts:
1. The grounds of the motions for reconsideration were already resolved by the
decision and the separate opinion.
2. The administrative matter he brought invoked the Courts power of supervision over
the JBC as provided by Section 8(1), Article VIII of the Constitution, as distinguished
from the Courts adjudicatory power under Section 1, Article VIII. In the former, the
requisites for judicial review are not required, which was why Valenzuela was
docketed as an administrative matter. Considering that the JBC itself has yet to take a
position on when to submit the short list to the proper appointing authority, it has
effectively solicited the exercise by the Court of its power of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to
amend the Constitution.
4. The portions of the deliberations of the Constitutional Commission quoted in the
dissent of Justice Carpio Morales, as well as in some of the motions for
reconsideration do not refer to either Section 15, Article VII or Section 4(1), Article VIII,
but to Section 13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised
and argued, not being new, have all been resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and
emphasis.
First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly
insist that the Court has erred in disobeying or abandoning Valenzuela. 1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to
adhere to precedent and not to unsettle things that are settled. It simply means that a principle
underlying the decision in one case is deemed of imperative authority, controlling the decisions of
like cases in the same court and in lower courts within the same jurisdiction, unless and until the
decision in question is reversed or overruled by a court of competent authority. The decisions relied
upon as precedents are commonly those of appellate courts, because the decisions of the trial
courts may be appealed to higher courts and for that reason are probably not the best evidence of
the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the
actuations, not only of those called upon to abide by them, but also of those duty-bound to enforce
obedience to them.3 In a hierarchical judicial system like ours, the decisions of the higher courts bind
the lower courts, but the courts of co-ordinate authority do not bind each other. The one highest
court does not bind itself, being invested with the innate authority to rule according to its best lights. 4
The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus,
the Court, especially with a new membership, is not obliged to follow blindly a particular decision
that it determines, after re-examination, to call for a rectification.5 The adherence to precedents is
strict and rigid in a common-law setting like the United Kingdom, where judges make law as binding
as an Act of Parliament.6 But ours is not a common-law system; hence, judicial precedents are not
always strictly and rigidly followed. A judicial pronouncement in an earlier decision may be followed
as a precedent in a subsequent case only when its reasoning and justification are relevant, and the
court in the latter case accepts such reasoning and justification to be applicable to the case. The
application of the precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed,
and that its wisdom should guide, if not control, the Court in this case is, therefore, devoid of
rationality and foundation. They seem to conveniently forget that the Constitution itself recognizes
the innate authority of the Court en banc to modify or reverse a doctrine or principle of law laid down
in any decision rendered en banc or in division. 7
Second: Some intervenors are grossly misleading the public by their insistence that the
Constitutional Commission extended to the Judiciary the ban on presidential appointments during
the period stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the records of the
Constitutional Commission did not concern either Section 15, Article VII or Section 4(1), Article VIII,
but only Section 13, Article VII, a provision on nepotism. The records of the Constitutional
Commission show that Commissioner Hilario G. Davide, Jr. had proposed to include judges and
justices related to the President within the fourth civil degree of consanguinity or affinity among the
persons whom the President might not appoint during his or her tenure. In the end, however,
Commissioner Davide, Jr. withdrew the proposal to include the Judiciary in Section 13, Article VII
"(t)o avoid any further complication," 8 such that the final version of the second paragraph of Section
13, Article VII even completely omits any reference to the Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President
shall not during his tenure be appointed as Members of the Constitutional Commissions, or the
Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or
offices, including government-owned or controlled corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to
appointments in the Judiciary. They aver that the Court either ignored or refused to apply many
principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently contravening their avowed
reliance on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of the express
extension of the ban on appointments to the Judiciary, insist that the ban applied to the Judiciary
under the principle of verba legis. That is self-contradiction at its worst.
Another instance is the movants unhesitating willingness to read into Section 4(1) and Section 9,
both of Article VIII, the express applicability of the ban under Section 15, Article VII during the period
provided therein, despite the silence of said provisions thereon. Yet, construction cannot supply the
omission, for doing so would generally constitute an encroachment upon the field of the
Constitutional Commission. Rather, Section 4(1) and Section 9 should be left as they are, given that
their meaning is clear and explicit, and no words can be interpolated in them. 9Interpolation of words
is unnecessary, because the law is more than likely to fail to express the legislative intent with the
interpolation. In other words, the addition of new words may alter the thought intended to be
conveyed. And, even where the meaning of the law is clear and sensible, either with or without the
omitted word or words, interpolation is improper, because the primary source of the legislative intent
is in the language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would have easily and surely written
the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment
of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That
such specification was not done only reveals that the prohibition against the President or Acting
President making appointments within two months before the next presidential elections and up to
the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme
Court.
We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to
suit the purposes of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy we are resolving that
because all the Members of the present Court were appointed by the incumbent President, a
majority of them are now granting to her the authority to appoint the successor of the retiring Chief
Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience and the merits of the issues.
Any claim to the contrary proceeds from malice and condescension. Neither the outgoing President
nor the present Members of the Court had arranged the current situation to happen and to evolve as
it has. None of the Members of the Court could have prevented the Members composing the Court
when she assumed the Presidency about a decade ago from retiring during her prolonged term and
tenure, for their retirements were mandatory. Yet, she is now left with an imperative duty under the
Constitution to fill up the vacancies created by such inexorable retirements within 90 days from their
occurrence. Her official duty she must comply with. So must we ours who are tasked by the
Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.
G.R. No. 202242 April 16, 2013
FRANCISCO I. CHAVEZ, Petitioner,
vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.
RESOLUTION
MENDOZA, J.:
This resolves the Motion for Reconsideration 1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).
By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.
On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:
WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
On July 31, 2012, following respondents motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed,
in the meantime, to suspend the effects of the second paragraph of the dispositive portion of the
July 17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:
WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Courts July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9
Pursuant to the same resolution, petitioner and respondents filed their respective memoranda. 10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation
of their appointment in the Judiciary to ingratiate themselves with the members of the legislative
body.13
Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.
Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC was substantially altered.1wphi1 An eighth
member was added to the JBC as the two (2) representatives from Congress began sitting
simultaneously in the JBC, with each having one-half (1/2) of a vote.17
In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.
While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the
final resolution of this case.
As these two issues are interrelated, the Court shall discuss them jointly.
Ruling of the Court
The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic. 19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.
For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of Congress," the Filipino people through the Framers intended
that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.
A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of
the Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to
replace the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members." 22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.
The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war, 25 canvassing of
electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.
In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.
On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:
I humbly reiterate my position that there should be only one representative of Congress in the JBC
in accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.
The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."
Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.
In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the above-
quoted provision of the Constitution. (Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:
8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of even-
numbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)
In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:
As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)
In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:
A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commissions desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.
xxx
No parallelism can be drawn between the representative of Congress in the JBC and the exercise
by Congress of its legislative powers under Article VI and constituent powers under Article XVII of
the Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the
House of Representatives to coordinate and act as distinct bodies in furtherance of Congress role
under our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness
of the two Houses of Congress as they relate inter se, no such dichotomy need be made when
Congress interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]
The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.
From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional
circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.
It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.
Respondents contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.
It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine
enunciated in Planters Products, Inc. v. Fertiphil Corporation: 32
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an
undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case
when a declaration of unconstitutionality would put the accused in double jeopardy or would put in
limbo the acts done by a municipality in reliance upon a law creating it. 33
Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.
Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.
In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted." 34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated." 36 "The Court cannot supply what it thinks the
legislature would have supplied had its attention been called to the omission, as that would be
judicial legislation."37
Stated differently, the Court has no power to add another member by judicial construction.
The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance. 38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how
ideal or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court
declines.
WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.
The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.
SO ORDERED.
G.R. No. 213181 August 19, 2014
FRANCIS H. JARDELEZA Petitioner,
vs.
CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR COUNCIL AND
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.
DECISION
MENDOZA, J.:
Once again, the Couii is faced with a controversy involving the acts of an independent body, which
is considered as a constitutional innovation the Judicial and Bar Council (JBC). It is not the first time
that the Court is called upon to settle legal questions surrounding the JBC's exercise of its
constitutional mandate. In De Castro v. JBC,1 the Court laid to rest issues such as the duty of the
JBC to recommend prospective nominees for the position of Chief Justice vis--vis the appointing
power of the President, the period within which the same may be exercised, and the ban on
midnight appointments as set forth in the Constitution. In Chavez v. JBC, 2 the Court provided an
extensive discourse on constitutional intent as to the JBCs composition and membership.
This time, however, the selection and nomination process actually undertaken by the JBC is being
challenged for being constitutionally infirm. The heart of the debate lies not only on the very
soundness and validity of the application of JBC rules but also the extent of its discretionary power.
More significantly, this case of first impression impugns the end-result of its acts - the shortlistfrom
which the President appoints a deserving addition to the Highest Tribunal of the land.
To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief
Justice herself, was being impleaded as party respondent.
The Facts
The present case finds its genesis from the compulsory retirement of Associate Justice Roberto
Abad (Associate Justice Abad) last May 22, 2014. Before his retirement, on March 6, 2014, in
accordance with its rules,3 the JBC announced the opening for application or recommendation for
the said vacated position.
On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of the
Philippines nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor General of
the Republic, for the said position. Upon acceptance of the nomination, Jardeleza was included in
the names of candidates, as well as in the schedule of public interviews. On May 29, 2014,
Jardeleza was interviewed by the JBC.
It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received
telephone callsfrom former Court of Appeals Associate Justice and incumbent JBC member, Aurora
Santiago Lagman (Justice Lagman), who informed him that during the meetings held on June 5 and
16, 2014, Chief Justice and JBC ex-officioChairperson, Maria Lourdes P.A. Sereno (Chief Justice
Sereno),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.
Consequently, Jardeleza filed a letter-petition (letter-petition)5 praying that the Court, in the exercise
of itsconstitutional 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, the sworn statements of supporting witnesses, if any, and copies of documents in
support of the charges; and notice and sworn statements shall be made part of the public record of
the JBC; 2) allowing him to cross-examine his oppositors and supporting witnesses, if any, and the
cross-examination to be conducted in public, under the same conditions that attend the
publicinterviews held for all applicants; 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 or at any adjournment thereof where such vote would be
taken for the nominees for the position vacated by Associate Justice Abad.
During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice Antonio
T. Carpio (Associate Justice Carpio) appeared as a resource person to shed light on a classified
legal memorandum (legal memorandum) that would clarify the objection to Jardelezas integrity as
posed by Chief Justice Sereno. 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.
Later, Jardeleza was directed to one of the Courts ante-rooms where Department of Justice
Secretary Leila M. De Lima (Secretary De Lima) informed him that Associate Justice Carpio
appeared before the JBC and disclosed confidential information which, to Chief Justice Sereno,
characterized his integrity as dubious. After the briefing, Jardeleza was summoned by the JBC at
around 2:00oclock in the afternoon.
Jardeleza alleged that he 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 specifically demanded that Chief Justice Sereno execute a
sworn statement specifying her objectionsand that he be afforded the right to cross-examine her in a
public hearing. He requested that the same directive should also be imposed on Associate Justice
Carpio. As claimed by the JBC, Representative Niel G. Tupas Jr. also manifested that he wanted to
hear for himself Jardelezas explanation on the matter. Jardeleza, however, refused as he would not
be lulled intowaiving his rights. Jardeleza then put into record a written statement 6 expressing his
views on the situation and 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. At this juncture, Jardeleza was
excused.
Later in the afternoon of the sameday, 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. Thereafter, the JBC releasedthe subject shortlist of four (4) nominees which
included: Apolinario D. Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6) votes, Maria
Gracia M. Pulido Tan with five (5) votes, and Reynaldo B. Daway with four (4) votes. 7
As mentioned in the petition, a newspaper article was later published in the online portal of the
Philippine Daily Inquirer, stating that the Courts Spokesman, Atty. Theodore Te, revealed that there
were actually five (5) nominees who made it to the JBC shortlist, but one (1) 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 Court noted Jardelezas letterpetition 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." 8 The said resolution was accompanied by
an extensive Dissenting Opinion penned by Associate Justice Arturo D. Brion, 9 expressing his
respectful disagreement as to the position taken by the majority.
The Petition
Perceptibly based on the aforementioned resolutions declaration as to his availment of a remedy in
law, Jardeleza filed the present petition for certiorari and mandamus under Rule 65 of the Rules of
Court with prayer for the issuance of a Temporary Restraining Order (TRO), seeking to compel the
JBC to include him in the list ofnominees for Supreme Court Associate Justice viceAssociate Justice
Abad, 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.
Notably, Jardelezas petition decries that despite the obvious urgency of his earlier letter-petition
and its concomitant filing on June 25, 2014, the same was raffled only on July 1, 2014 or a day after
the controversial JBC meeting. By the time that his letter-petition was scheduled for deliberation by
the Court en bancon July 8, 2014, the disputedshortlist had already been transmitted to the Office of
the President. He attributedthis belated action on his letter-petition to Chief Justice Sereno, whose
action on such matters, especially those impressed withurgency, was discretionary.
An in-depth perusal of Jardelezas petition would reveal that his resort to judicial intervention hinges
on the alleged illegality of his exclusion from the shortlist due to: 1) the deprivation of his
constitutional right to due process; and 2) the JBCs erroneous application, if not direct violation, of
its own rules. Suffice it to say, Jardelezadirectly ascribes the supposed violation of his constitutional
rights tothe acts of Chief Justice Sereno in raising objections against his integrity and the manner by
which the JBC addressed this challenge to his application, resulting in his arbitrary exclusion from
the list of nominees.
Jardelezas Position
For a better understanding of the above postulates proffered in the petition, the Court hereunder
succinctlysummarizes Jardelezas arguments, as follows:
A. Chief Justice Sereno and the JBC violated Jardelezas right to due process in the events leading
up to and during the vote on the shortlist last June 30, 2014. When accusations against his integrity
were made twice, ex parte, by Chief Justice Sereno, without informing him of the nature and cause
thereof and without affording him an opportunity to be heard, Jardeleza was deprived of his right to
due process. In turn, the JBC violated his right to due process when he was simply ordered to make
himself available on the June 30, 2014 meeting and was told that the objections to his integrity
would be made known to him on the same day. Apart from mere verbal notice (by way of a
telephone call) of the invocation of Section 2, Rule 10 of JBC-009 against his application and not on
the accusations against him per se, he was deprived of an opportunity to mount a proper defense
against it. Not only did the JBC fail to ventilate questions on his integrity during his public interview,
he was also divested of his rights as an applicant under Sections 3 and 4, Rule 4, JBC-009, to wit:
Section 3. Testimony of parties. The Council may receive written opposition to an applicant on the
ground of his moral fitness and, at its discretion, the Council may receive the testimony of the
oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be
allowed to cross-examine the oppositor and to offer countervailing evidence.
Section 4. Anonymous Complaints. Anonymous complaints against an applicant shall not be given
due course, unless there appears on its face a probable cause sufficient to engender belief that the
allegations may be true. In the latter case, the Council may direct a discreet investigation or require
the applicant to comment thereon in writing or during the interview.
His lack of knowledge as to the identity of his accusers (except for yet again, the verbalinformation
conveyed to him that Associate Justice Carpio testified against him) and as to the nature of the very
accusations against him caused him to suffer from the arbitrary action by the JBC and Chief Justice
Sereno. The latter gravely abused her discretion when she acted as prosecutor, witness and
judge,thereby violating the very essence of fair play and the Constitution itself. In his words: "the sui
generis nature of JBC proceedings does not authorize the Chief Justice to assume these roles, nor
does it dispense with the need to honor petitioners right to due process." 10
B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of
nominees, in violation of its own rules. The "unanimity requirement" provided under Section 2,
Rule10 of JBC-009 does not find application when a member of the JBC raises an objection to an
applicants integrity. Here, the lone objector constituted a part of the membership of the body set to
vote. The lone objector could be completely capable oftaking hostage the entire voting process by
the mere expediency of raising an objection. Chief Justice Serenos interpretation of the rule would
allow a situation where all thata member has to do to veto other votes, including majority votes,
would be to object to the qualification of a candidate, without need for factual basis.
C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to include
Jardeleza in the subject shortlist.Section 1, Rule 10 of JBC-009 provides that a nomination for
appointment to a judicial position requires the affirmative vote of at least a majority of all members of
the JBC. The JBC cannot disregard its own rules. Considering that Jardeleza was able to secure
four (4) out of six (6) votes, the only conclusion is that a majority of the members of the JBC found
him to be qualified for the position of Associate Justice.
D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the Presidents
constitutional power to appoint.Jardelezas exclusion from the shortlist has unlawfully narrowed the
Presidents choices. Simply put, the President would be constrained to choose from among four (4)
nominees, when five (5) applicants rightfully qualified for the position. This limits the President to
appoint a member of the Court from a list generated through a process tainted with patent
constitutional violations and disregard for rules of justice and fair play. Until these constitutional
infirmities are remedied, the petitioner has the right to prevent the appointment of an Associate
Justice viceAssociate Justice Abad.
Comment of the JBC
On August 11, 2014, the JBC filed its comment contending that Jardelezas petition lacked
proceduraland substantive bases that would warrant favorable action by the Court. For the JBC,
certiorariis only available against a tribunal, a board or an officer exercising judicial or quasijudicial
functions.11 The JBC, in its exercise of its mandate to recommend appointees to the Judiciary, does
not exercise any of these functions. In a pending case, 12 Jardeleza himself, as one of the lawyers for
the government, argued in this wise: Certioraricannot issue against the JBC in the implementation of
its policies.
In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a
discretionary act. For it to prosper, a petition for mandamus must, among other things, show that the
petitioner has a clear legal right to the act demanded. In Jardelezas case, there is no legal right to
be included in the list of nominees for judicial vacancies. Possession of the constitutional and
statutory qualifications for appointment to the Judiciary may not be used to legally demand that
ones name be included in the list of candidates for a judicial vacancy. Ones inclusion in the shortlist
is strictly within the discretion of the JBC.
Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process.
The JBC reiterated that Justice Lagman, on behalf of the JBC en banc, called Jardeleza and
informed him that Chief Justice Sereno would be invoking Section 2, Rule 10 of JBC-009 due to a
question on his integrity based on the way he handled a very important case for the government.
Jardeleza and Justice Lagman spoke briefly about the case and his general explanation on how he
handled the same. Secretary De Lima likewise informed him about the content of the impending
objection against his application. On these occasions, Jardeleza agreed to explain himself. Come
the June 30, 2014 meeting, however, Jardeleza refused to shed light on the allegations against
him,as he chose to deliver a statement, which, in essence, requested that his accuser and her
witnesses file sworn statements so that he would know of the allegations against him, that he be
allowed to cross-examine the witnesses;and that the procedure be done on record and in public.
In other words, Jardeleza was given ample opportunity to be heard and to enlighten each member
of the JBC on the issues raised against him prior to the voting process. His request for a sworn
statement and opportunity to cross-examine is not supported by a demandable right. The JBC is not
a fact-finding body. Neitheris it a court nor a quasi-judicial agency. The members are notconcerned
with the determination of his guilt or innocence of the accusations against him. Besides, Sections 3
and 4, Rule 10,JBC-009 are merely directory as shown by the use of the word "may." Even the
conduct of a hearing to determine the veracity of an opposition is discretionary on the JBC.
Ordinarily, if there are other ways of ascertaining the truth or falsity of an allegation or opposition,
the JBC would not call a hearing in order to avoid undue delay of the selection process. Each
member of the JBC relies on his or her own appreciation of the circumstances and qualifications of
applicants.
The JBC then proceeded to defend adherence to its standing rules. 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 saidprovision, Jardeleza needed the affirmative vote of all the JBC members tobe
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. As a result,he was not included in the shortlist. Applicant Reynaldo B. Daway, who
gotfour (4) affirmative votes, was included in the shortlist because his integrity was not challenged.
As to him, the "majority rule" was considered applicable.
Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General.
Despiteclaiming a prefatory appearance in propria persona, all pleadings filed with the Court were
signed in his official capacity. In effect, he sued the respondents to pursue a purely private interest
while retaining the office of the Solicitor General. By suing the very parties he was tasked by law to
defend, Jardeleza knowingly placed himself in a situation where his personal interests collided
against his public duties, in clear violation of the Code of Professional Responsibility and Code of
Professional Ethics. Moreover, the respondents are all public officials being sued in their official
capacity. By retaining his title as Solicitor General, and suing in the said capacity, Jardeleza filed a
suit against his own clients, being the legal defender of the government and its officers. This runs
contrary to the fiduciary relationship sharedby a lawyer and his client.
In opposition to Jardelezas prayer for the issuance of a TRO, the JBC called to mind the
constitutional period within which a vacancy in the Court must be filled. As things now stand, the
President has until August 20, 2014 to exercise his appointment power which cannot be restrained
by a TRO or an injunctive suit.
Comment of the Executive Secretary
In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the possible
unconstitutionality of Section 2, Rule 10 of JBC-009, particularly the imposition ofa higher voting
threshold in cases where the integrity of an applicant is challenged. It is his position that the subject
JBC rule impairs the bodys collegial character, which essentially operates on the basis of majority
rule. The application of Section 2, Rule 10 of JBC-009 gives rise to a situation where all that a
member needs to do, in order to disqualify an applicant who may well have already obtained a
majority vote, is to object to his integrity. In effect, a member who invokes the said provision is given
a veto powerthat undermines the equal and full participation of the other members in the nomination
process. A lone objector may then override the will ofthe majority, rendering illusory, the collegial
nature of the JBC and the very purpose for which it was created to shield the appointment
process from political maneuvering. Further, Section 2, Rule 10 of JBC-009 may beviolative of due
process for it does not allow an applicant any meaningful opportunity to refute the challenges to his
integrity. While other provisions of the JBC rules provide mechanisms enabling an applicant to
comment on an opposition filed against him, the subject rule does not afford the same opportunity.
In this case, Jardelezas allegations as to the events which transpired on June 30, 2014 obviously
show that he was neither informed ofthe accusations against him nor given the chance to muster a
defense thereto.
The Executive Secretary then offered a supposition: granting that the subject provision is held to be
constitutional, the "unanimity rule" would only be operative when the objector is not a member of the
JBC. It is only in this scenario where the voting ofthe body would not be rendered inconsequential.
In the event that a JBC member raised the objection, what should have been applied is the general
rule of a majority vote, where any JBC member retains their respective reservations to an
application with a negative vote. Corollary thereto, the unconstitutionality of the said rule would
necessitate the inclusion of Jardeleza in the shortlist submitted to the President.
Other pleadings
On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its
Comment. He submitted his Reply thereto on August 15, 2014. A few hours thereafter, orbarely ten
minutes prior to the closing of business, the Court received the Supplemental Comment-Reply of the
JBC, this time with the attached minutes of the proceedings that led to the filing of the petition,and a
detailed "Statementof the Chief Justice on the Integrity Objection." 13 Obviously, Jardelezas Reply
consisted only of his arguments against the JBCs original Comment, as it was filed prior to the filing
of the Supplemental Comment-Reply.
At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-
intervention were filed. One was by Atty. Purificacion S. Bartolome-Bernabe, purportedly the
President of the Integrated Bar of the Philippines-Bulacan Chapter. This pleading echoed the
position of the JBC.14
The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP
Baguio-Benguet Chapter and former Governor of the IBP-Northern Luzon. It was coupled with a
complaint for disbarment against Jardeleza primarily for violations of the Code of Professional
Responsibility for representing conflicting interests. 15
Both motions for intervention weredenied considering that time was of the essence and their
motions were merely reiterative of the positions of the JBC and were perceived to be dilatory. The
complaint for disbarment, however, was re-docketed as a separate administrative case.
The Issues
Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the
resolution of one issue would necessarily affect the conclusion as to the others, the Court opts to
narrow down the questions to the very source of the discord - the correct application of Section 2,
Rule 10 JBC-009 and its effects, if any, on the substantive rights of applicants.
The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise the
unconstitutionality of the subject JBC rule. Instead, it bewails the unconstitutional effects of its
application. It is only from the comment of the Executive Secretary where the possible
unconstitutionality of the rulewas brought to the fore. Despite this milieu, a practical approach
dictatesthat the Court must confront the source of the bleeding from which the gaping wound
presented to the Court suffers.
The issues for resolution are:
I.
WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND GIVE DUECOURSE TO
THE SUBJECT PETITION FOR CERTIORARI AND MANDAMUS (WITH APPLICATION FOR A
TEMPORARY RESTRAINING ORDER).
II
WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT "QUESTIONS OR
CHALLENGES ON INTEGRITY" AS CONTEMPLATED UNDER SECTION 2, RULE 10 OF JBC-
009.
II.
WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN THE COURSE OF JBC
PROCEEDINGS IN CASES WHERE AN OBJECTION OR OPPOSITION TO AN APPLICATION IS
RAISED.
III.
WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN THE SHORTLIST OF
NOMINEES SUBMITTED TO THE PRESIDENT.
The Courts Ruling
I Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case
A - The Courts Power of Supervision over the JBC
Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court was
given supervisory authority over it. Section 8 reads:
Section 8.
A Judicial and Bar Council is hereby created under the supervision of the Supreme Courtcomposed
of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector. [Emphasis supplied]
As a meaningful guidepost, 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.16
Based on this, 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.
B- Availability of the Remedy of Mandamus
The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to compel
the performance, when refused, of a ministerial duty, but not to compel the performance of a
discretionary duty. Mandamuswill 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.17 There is no question that the JBCs duty to nominate is discretionary and it
may not becompelled to do something.
C- Availability of the Remedy of Certiorari
Respondent JBC opposed the petition for certiorarion the ground that it does not exercise judicial or
quasi-judicial functions. Under Section 1 of Rule 65, a writ of certiorariis 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. Quasijudicial 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." 18 It asserts that in the performance of its function
of recommending appointees for the judiciary, the JBC does not exercise judicial or quasijudicial
functions. Hence, the resort tosuch remedy to question its actions is improper.
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 vestedupon it by the 1987
Constitution. Thus:
Article VIII.
Section 1. The judicial power is vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
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 orinstrumentality of the government, even if the latter
does not exercise judicial, quasi-judicial or ministerial functions.19
In a case like this, where constitutional bearings are too blatant to ignore, the Court does not find
passivity as an alternative. The impassemust be overcome.
II Substantial Issues
Examining the Unanimity Rule of the JBC in cases where an applicants integrity is challenged
The purpose of the JBCs existence is indubitably rooted in the categorical constitutional declaration
that"[a] member of the judiciary must be a person of proven competence, integrity, probity, and
independence." To ensure the fulfillment of these standards in every member of the Judiciary, the
JBC has been tasked toscreen aspiring judges and justices, among others, 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 shieldedfrom the possibility of extending judicial appointment to the
undeserving and mediocre and, more importantly, to the ineligible or disqualified.
In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses" of
JBC-009, that qualifications such as "competence, integrity, probity and independence are not easily
determinable as they are developed and nurtured through the years." Additionally, "it is not possible
or advisable to lay down iron-clad rules to determine the fitness of those who aspire to become a
Justice, Judge, Ombudsman or Deputy Ombudsman." Given this realistic situation, there is a need
"to promote stability and uniformity in JBCs guiding precepts and principles." 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. Likewise for the sake oftransparency of its proceedings, the JBC had put these criteria in
writing, now in the form of JBC-009. True enough, guidelines have been set inthe determination of
competence,"20 "probity and independence,"21"soundness of physical and mental condition, 22 and
"integrity."23
As disclosed by the guidelines and lists of recognized evidence of qualification laid down in JBC-
009, "integrity" is closely related to, or if not, approximately equated to an applicants good
reputation for honesty, incorruptibility, irreproachableconduct, and fidelity to sound moral and ethical
standards. That is why proof of an applicants reputation may be shown in certifications or
testimonials from reputable government officials and non-governmental organizations and
clearances from the courts, National Bureau of Investigation, and the police, among others. In fact,
the JBC may even conduct a discreet background check and receive feedback from the public on
the integrity, reputation and character of the applicant, the merits of which shall be verifiedand
checked. As a qualification, the term is taken to refer to a virtue, such that, "integrity is the quality of
persons character."24
The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in imposing
the "unanimity rule," contemplate a doubt on the moral character of an applicant? Section 2, Rule 10
of JBC-009 provides:
SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case where
the integrity of an applicant who is not otherwise disqualified for nomination is raised or challenged,
the affirmative vote of all the Members of the Council must be obtained for the favorable
consideration of his nomination.
A simple reading of the above provision undoubtedly elicits the rule that 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" required in the preceding section.25 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, that is, 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.
Examining the "questions of integrity" made against Jardeleza
The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to Jardelezas
case.
The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, 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. 26
Against this factual backdrop, the Court notes that 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 the government in a legal
dispute. The records bear that the "unanimity rule" was initially invoked by Chief Justice Sereno
during the JBC meeting held on June 5, 2014, where she expressed her position that Jardeleza did
not possess the integrity required tobe a member of the Court. 27 In the same meeting, the Chief
Justice shared withthe other JBC members the details of Jardelezas chosen manner of framing the
governments position in a case and how this could have been detrimental to the national interest.
In the JBCs original comment, the details of the Chief Justices claim against Jardelezas integrity
were couched in general terms. The particulars thereof were only supplied to the Court in the JBCs
Supplemental Comment-Reply. Apparently, the JBC acceded to Jardelezas demand to make the
accusations against him public. At the outset, the JBC declined to raise the fine points of the
integrity question in its original Comment due to its significant bearing on the countrys foreign
relations and national security. At any rate, the Court restrains itself from delving into the details
thereof in this disposition. The confidential nature of the document cited therein, which requires the
observance of utmost prudence, preclude a discussion that may possibly affect the countrys
position in a pending dispute.
Be that as it may, the Court has to resolve the standing questions: Does the original invocation of
Section 2, Rule 10 of JBC-009 involve a question on Jardelezas integrity? Doeshis adoption of a
specific legal strategy in the handling of a case bring forth a relevant and logical 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?
The Court answers these questions in the negative.
While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not
borne out ofa 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 ofhis 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.
Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction among
members of the legal community. A lawyer has complete discretion on whatlegal strategy to employ
in a case entrusted to him28provided that he lives up tohis 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. An infallible
grasp of legal principles and technique by a lawyer is a utopian ideal. 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.
As shown in the minutes, the other JBC members expressed their reservations on whether the
ground invoked by Chief Justice Sereno could be classified as a "question of integrity" under
Section 2, Rule 10 of JBC-009.29 These reservations were evidently sourced from the factthat there
was no clear indication that the tactic was a "brainchild" of Jardeleza, as it might have been a
collective idea by the legal team which initially sought a different manner of presenting the countrys
arguments, and there was no showing either of a corrupt purpose on his part. 30 Even Chief Justice
Sereno was not certain that Jardelezas acts were urged by politicking or lured by extraneous
promises.31Besides, the President, who has the final say on the conduct of the countrys advocacy
in the case, has given no signs that Jardelezas action constituted disloyalty or a betrayal of the
countrys trust and interest. While this point does notentail that only the President may challenge
Jardelezas doubtful integrity, itis commonsensical to assume that he is in the best position to
suspect a treacherous agenda. The records are bereft of any information that indicatesthis
suspicion. In fact, the Comment of the Executive Secretary expressly prayed for Jardelezas
inclusion in the disputed shortlist.
The Court notes the zeal shown by the Chief Justice regarding international cases, given her
participation in the PIATCO case and the Belgian Dredging case. Her efforts inthe determination of
Jardelezas professional background, while commendable, have not produced a patent
demonstration of a connection betweenthe act complained of and his integrity as a person.
Nonetheless, the Court cannot consider her 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.
As previously mentioned, Chief Justice Sereno raised the issues of Jardelezas alleged extra-marital
affair and acts of insider-trading for the first time onlyduring the June 30, 2014 meeting of the JBC.
As can be gleaned from the minutes of 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.32 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. She stated that inasmuch as the JBC had the duty to "take
every possible step to verify the qualification of the applicants," it might as well be clarified.33
Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of JBC-
009? The Court nods in assent. These are valid issues.
This acquiescence is consistent with the Courts discussion supra. Unlike the first ground which
centered onJardelezas stance on the tactical approach in pursuing the case for the government, the
claims of an illicit relationship and acts of insider trading bear a candid relation to his moral
character. Jurisprudence34 is replete with cases where a lawyers deliberate participation in extra-
marital affairs was considered as a disgraceful stain on ones ethical and moral principles. The
bottom line is that 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. In fact, even relationships which have never gone physical or intimate could still be
subject to charges of immorality, when a lawyer, who is married, admits to having a relationship
which was more than professional, more than acquaintanceship, more than friendly. 35 As the Court
has held: Immorality has not been confined to sexual matters, but includes conduct inconsistentwith
rectitude, or indicative of corruption, indecency, depravity and dissoluteness; or is willful, flagrant, or
shameless conduct showing moral indifference to opinions of respectable members of the
communityand an inconsiderate attitude toward good order and public welfare.36 Moral character is
not a subjective term but one that corresponds to objective reality. 37 To have a good moral
character, a person must have the personal characteristic ofbeing good. It is not enough that he or
she has a good reputation, that is, the opinion generally entertained about a person or the estimate
in which he or she is held by the public in the place where she is known. 38 Hence, lawyers are at all
times subject to the watchful public eye and community approbation.39
The element of "willingness" to linger in indelicate relationships imputes a weakness in ones values,
self-control and on the whole, sense of honor, not only because it is a bold disregard of the sanctity
of marriage and of the law, but because it erodes the publics confidence in the Judiciary. This is no
longer a matter of an honest lapse in judgment but a dissolute exhibition of disrespect toward
sacredvows taken before God and the law.
On the other hand, insider trading is an offense that assaults the integrity of our vital securities
market.40Manipulative devices and deceptive practices, including insider trading, throw a monkey
wrench right into the heart of the securities industry. Whensomeone trades inthe market with unfair
advantage in the form of highly valuable secret inside information, all other participants are
defrauded. All of the mechanisms become worthless. Given enough of stock marketscandals
coupled with the related loss of faith in the market, such abuses could presage a severe drain of
capital. And investors would eventuallyfeel more secure with their money invested elsewhere. 41 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 toengage in fraudulent activities that may speak of his moral character.
These two issues 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.
The Availability of Due Process in the
Proceedings of the JBC
In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the
accusations against him in writing; 2] he was not furnished the basis of the accusations, that is, "a
very confidential legal memorandum that clarifies the integrityobjection"; 3] instead of heeding his
request for an opportunity to defend himself, the JBC considered his refusal to explain, during the
June 30, 2014 meeting, as a waiver of his right to answer the unspecified allegations; 4] the voting
of the JBC was railroaded; and 5] the alleged "discretionary" nature of Sections 3 and 4 of JBC-009
is negated by the subsequent effectivity of JBC-010, Section 1(2) of which provides for a 10-day
period from the publication of the list of candidates within which any complaint or opposition against
a candidate may be filed with the JBC Secretary; 6] Section 2 of JBC-010 requires complaints and
oppositions to be in writing and under oath, copies of which shall be furnished the candidate in order
for him to file his comment within five (5) days from receipt thereof; and 7] Sections 3 to 6 of JBC-
010 prescribe a logical, reasonable and sequential series of steps in securing a candidates right to
due process.
The JBC counters these by insisting that it is not obliged to 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 toascertain 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. He may not exact the application of rules of
procedure which are, at the most, discretionary or optional. Finally, Jardeleza refused to shed light
on the objections against him. During the June 30, 2014 meeting, he did not address the issues, but
instead chose totread on his view that the Chief Justice had unjustifiably become his accuser,
prosecutor and judge.
The crux of the issue is on the availability of the right to due process in JBC proceedings. After a
tedious review of the parties respective arguments, the Court concludes that the right to due
process is available and thereby demandable asa matter of right.
The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they are
distinct from criminal proceedings where the finding of guilt or innocence of the accused is sine qua
non. The JBCs constitutional duty to recommend qualified nominees to the President cannot be
compared to the duty of the courts of law to determine the commission of an offense and ascribe the
same to an accused, consistent with established rules on evidence. Even the quantum ofevidence
required in criminal cases is far from the discretion accorded to the JBC.
The Court, however, could not accept, lock, stock and barrel, the argument that an applicants
access tothe rights afforded under the due process clause is discretionary on the part of the JBC.
While the facets of criminal 42 and administrative43 due process are not strictly applicable to JBC
proceedings, their peculiarity is insufficient to justify the conclusion that due process is not
demandable.
In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he
presents proof of his scholastic records, work experience and laudable citations. His goal is to
establish that he is qualified for the office applied for. The JBC then takes every possible step to
verify an applicant's trackrecord for the purpose ofdetermining whether or not he is qualified for
nomination. It ascertains the factors which entitle an applicant to become a part of the roster from
which the President appoints.
The fact that a proceeding is sui generisand 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 generisin 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.44 Hence, in the exercise of its disciplinary powers, the
Court merely calls upon a member of the Bar to accountfor his actuations as an officer of the Court
with the end in view of preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who, by their misconduct, have
proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to
the office of an attorney. In such posture, there can be no occasion to speak of a complainant or a
prosecutor.45 On the whole, disciplinary proceedings are actually aimed to verifyand finally
determine, if a lawyer charged is still qualifiedto benefit from the rights and privileges that
membership in the legal profession evoke.
Notwithstanding being "a class of itsown," the right to be heard and to explain ones self is availing.
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 torecommend. 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 capriciousassessment 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.
A more pragmatic take on the matter of due process in JBC proceedings also compels the Court to
examine its current rules. The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-010.
The former provides the following provisions pertinent to this case:
SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the
applicant's record of and reputation for honesty, integrity, incorruptibility, irreproachable conduct,
and fidelity to sound moral and ethical standards. For this purpose, the applicant shall submit to the
Council certifications or testimonials thereof from reputable government officials and non-
governmental organizations, and clearances from the courts, National Bureau of Investigation,
police, and from such other agencies as the Council may require.
SECTION 2. Background check. - The Council mayorder a discreet background check on the
integrity, reputation and character of the applicant, and receive feedback thereon from the public,
which it shall check or verify to validate the merits thereof.
SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant on
groundof his moral fitness and, at its discretion, the Council mayreceive the testimony of the
oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be
allowed to cross-examine the oppositor and to offer countervailing evidence.
SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not
begiven due course, unless there appears on its face a probable cause sufficient to engender belief
that the allegations may be true. In the latter case, the Council may either direct a discreet
investigation or require the applicant to comment thereon in writing or during the interview.
[Emphases Supplied]
While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court to
hold that the subsequent rule, JBC-010,46 squarely applies to his case. Entitled asa "Rule to Further
Promote Public Awareness of and Accessibility to the Proceedings of the Judicial and Bar Council,"
JBC-010 recognizes the needfor transparency and public awareness of JBC proceedings. In
pursuance thereof, JBC-010 was crafted in this wise:
SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates meet
prima facie the qualifications for the positionunder consideration. For this purpose, it shall prepare a
long list of candidates who prima facieappear to have all the qualifications.
The Secretary of the Council shall then cause to be published in two (2) newspapers of general
circulation a notice of the long list of candidates in alphabetical order.
The notice shall inform the public that any complaint or opposition against a candidate may be filed
with the Secretary within ten (10) days thereof.
SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible
copies, together with its supporting annexes. It shall strictly relate to the qualifications of the
candidate or lack thereof, as provided for in the Constitution, statutes, and the Rules of the Judicial
and Bar Council, as well as resolutions or regulations promulgated by it.
The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition against
him. The candidate shall have five (5) days from receipt thereof within which to file his comment to
the complaint or opposition, if he so desires.
SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session to
consider the qualification of the long list of candidates and the complaint or opposition against them,
if any. The Council may, on its own, conduct a discreet investigation of the background of the
candidates.
On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the
shorter list of candidates whom it desires to interview for its further consideration.
SECTION 4.The Secretary of the Council shall again cause to be published the dates of the
interview of candidates in the shorter list in two (2) newspapers of general circulation. It shall
likewise be posted in the websites of the Supreme Court and the Judicial and Bar Council.
The candidates, as well as their oppositors, shall be separately notified of the dateand place of the
interview.
SECTION 5.The interviews shall be conducted in public. During the interview, only the members
ofthe Council can ask questions to the candidate. Among other things, the candidate can be made
to explain the complaint or opposition against him.
SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive session
for the final deliberation on the short list of candidates which shall be sent to the Office of the
President as a basis for the exercise of the Presidential power of appointment. [Emphases supplied]
Anent the interpretation of these existing rules, 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." Thus, the
conduct of a hearing under Rule 4 of JBC-009 is permissive and/or discretionary on the part of the
JBC. Even the conduct of a hearing to determine the veracity of an opposition is discretionary for
there are ways, besides a hearing, to ascertain the truth or falsity of allegations. Succinctly, this
argument suggests that 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. Nevertheless, JBC adds, "what is mandatory, however, is that if the JBC, in its discretion,
receives a testimony of an oppositor in a hearing, due notice shall be given to the applicant and that
shall be allowed to cross-examine the oppositor."47 Again, the Court neither intends to strip the JBC
of its discretion to recommend nominees nor proposes thatthe JBC conduct a full-blown trial when
objections to an application are submitted. Still, it is unsound to say that, all together, the
observance of due process is a part of JBCs discretion when an opposition to an application is
made of record. While it 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.
The JBCs own rules convince the Court to arrive at this conclusion. The subsequent issuance of
JBC-010 unmistakably 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. The provisions of JBC-010, per se,
provide that: any complaint or opposition against a candidate may be filed with the Secretary within
ten (10) days thereof; the complaint or opposition shall be in writing, under oath and in ten (10)
legible copies; the Secretary of the Council shall furnish the candidate a copy of the complaint or
opposition against him; the candidate shall have five (5) days from receipt thereof within which to file
his comment to the complaint or opposition, if he so desires; and the candidate can be made to
explain the complaint or opposition against him.
The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory
construction,bears great weight in that: 1] it covers "any" complaint or opposition; 2] it employs the
mandatory term, "shall"; and 3] most importantly, it speaks of the very essence of due process.
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.
Application to Jardelezas Case
Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza
was deprived of his right to due process in the events leading up to, and during, the vote on the
shortlist last June 30, 2014.
The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to
answer the allegations against him. It underscores the fact that Jardeleza was asked to attend the
June 30, 2014 meeting so that he could shed light on the issues thrown at him. During the said
meeting, Chief Justice Sereno informed him that in connection with his candidacy for the position of
Associate Justice of the Supreme Court, the Council would like to propound questions on the
following issues raised against him: 1] his actuations in handling an international arbitration case not
compatible with public interest;48 2] reports on his extra-marital affair in SMC; and 3] alleged insider
trading which led to the "show cause" order from the Philippine Stock Exchange. 49
As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not want to
be "lulled into waiving his rights." Instead, he manifested that his statement be put on record and
informed the Council of the then pendency of his letter-petition with the Court en banc. When Chief
Justice Sereno informed Jardeleza that the Council would want to hear from him on the three (3)
issues against him,Jardeleza reasoned out that this was precisely the issue. He found it irregular
that he was not being given the opportunity to be heard per the JBC rules.He asserted that a
candidate must be given the opportunity to respond to the charges against him. He urged the Chief
Justice to step down from her pedestal and translate the objections in writing. Towards the end of
the meeting, the Chief Justice said that both Jardelezas written and oral statements would be made
part of the record. After Jardeleza was excused from the conference, Justice Lagman suggested
that the voting be deferred, but the Chief Justice ruled that the Council had already completed the
process required for the voting to proceed.
After careful calibration of the case, the Court has reached the determination that the application of
the "unanimity rule" on integrity resulted in Jardelezas deprivation of his right to due process.
As threshed out beforehand, 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. 50 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, these circumstances still cannot expunge an immense
perplexity that lingers in the mind of the Court. What is to become of the procedure laid down in
JBC-010 if the same would be treated with indifference and disregard? To repeat, as its wording
provides, any complaint or opposition against a candidate may be filed with the Secretary withinten
(10) days from the publication of the notice and a list of candidates. Surely, this notice is all the more
conspicuous to JBC members. Granting ex argumenti, that the 10-day period51 is only applicable to
the public, excluding the JBC members themselves, this does not discount the fact that the
invocation of the first ground in the June 5, 2014 meeting would have raised procedural issues. To
be fair, several members of the Council expressed their concern and desire to hear out Jardeleza
but the application of JBC-010 did not form part of the agenda then. It was only during the next
meeting on June 16, 2014, that the Council agreed to invite Jardeleza, by telephone, to a meeting
that would be held on the same day when a resource person would shed light on the matter.
Assuming again that the classified nature of the ground impelled the Council to resort to oral notice
instead of furnishing Jardeleza a written opposition, why did the JBC not take into account its
authority to summon Jardeleza in confidence at an earlier time? Is not the Council empowered to
"take every possible step to verify the qualification of the applicants?" It would not be amiss to state,
at this point, that the confidential legal memorandum used in the invocation ofthe "unanimity rule"
was actually addressed to Jardeleza, in his capacity as Solicitor General. Safe to assume is his
knowledge of the privileged nature thereof and the consequences of its indiscriminate release to the
public. Had he been privately informed of the allegations against him based on the document and
had he been ordered to respond thereto in the same manner, Jardelezas right to be informed and to
explain himself would have been satisfied.
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 (Aquino), Executive Secretary Paquito N. Ochoa (Ochoa), Sandiganbayan Associate Justice
issues became the object of the JBC discussion on June 16, 2014, Jardeleza was not given the idea Michael Frederick L. Musngi (Musngi), Sandiganbayan Associate Justice Ma. Geraldine Faith A.
that he should prepare to affirm or deny his past behavior. These circumstances preclude the very Econg (Econg), Atty. Danilo S. Sandoval (Sandoval), Atty. Wilhelmina B. Jorge-Wagan (Jorge-
idea of due process in which the right to explain oneself is given, not to ensnare by surprise, but Wagan), Atty. Rosana Fe Romero-Maglaya (Romero Maglaya), Atty. Merianthe Pacita M. Zuraek
toprovide the person a reasonable opportunity and sufficient time to intelligently muster his (Zuraek), Atty. Elmo M. Alameda (Alameda), and Atty. Victoria C. Fernandez-Bernardo (Fernandez-
response. Otherwise, the occasion becomes anidle and futile exercise. Bernardo). The Petition assails President Aquino's appointment of respondents Musngi and Econg
Needless to state, Jardelezas grievance is not an imagined slight but a real rebuff of his right to be as Associate Justices of the Sandiganbayan.2chanrobleslaw
informed of the charges against him and his right to answer the same with vigorouscontention and I
active participation in the proceedings which would ultimately decide his aspiration to become a FACTUAL ANTECEDENTS
magistrate of this Court.
Consequences On June 11, 1978, then President Ferdinand E. Marcos (Marcos) issued Presidential Decree No.
To write finisto this controversy and in view of the realistic and practical fruition of the Courts 1486, creating a special court called the Sandiganbayan, composed of a Presiding Judge and eight
findings, the Court now declares its position on whether or not Jardeleza may be included in the Associate Judges to be appointed by the President, which shall have jurisdiction over criminal and
shortlist, just in time when the period to appoint a member of the Court is about to end. civil cases involving graft and corrupt practices and such other offenses committed by public officers
The conclusion of the Court is hinged on the following pivotal points: and employees, including those in government owned or controlled corporations.3 A few months
1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC- later, on December 10, 1978, President Marcos also issued Presidential Decree No. 1606, 4 which
009 as to Jardelezas legal strategy in handling a case for the government. elevated the rank of the members of the Sandiganbayan from Judges to Justices, co-equal in rank
2. While Jardelezas alleged extra-marital affair and acts of insider trading fall within with the Justices of the Court of Appeals; and provided that the Sandiganbayan shall sit in three
the contemplation of a "question on integrity" and would have warranted the divisions of three Justices each.5Republic Act No. 79756 was approved into law on March 30, 1995
application of the "unanimity rule," he was notafforded due process in its application. and it increased the composition of the Sandiganbayan from nine to fifteen Justices who would sit in
3. The JBC, as the sole body empowered to evaluate applications for judicial posts, five divisions of three members each. Republic Act No. 10660, 7 recently enacted on April 16, 2015,
exercises full discretion on its power to recommend nomineesto the President. The sui created two more divisions of the Sandiganbayan with three Justices each, thereby resulting in six
generischaracter of JBC proceedings, however, is not a blanket authority to disregard vacant positions.
the due process under JBC-010.
4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, On July 20, 2015, the Judicial and Bar Council (JBC) published in the Philippine Star and Philippine
he was neither formally informed of the questions on his integrity nor was provided a Daily Inquirer and posted on the JBC website an announcement calling for applications or
reasonable opportunity to prepare his defense. recommendations for the six newly created positions of Associate Justice of the
With the foregoing, the Court is compelled to rule that Jardeleza should have been included in the Sandiganbayan.8 After screening and selection of applicants, the JBC submitted to President Aquino
shortlist submitted to the President for the vacated position of Associate Justice Abad. This six shortlists contained in six separate letters, all dated October 26, 2015, which
consequence arose not from the unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but read:ChanRoblesVirtualawlibrary
from the violation by the JBC of its own rules of procedure and the basic tenets of due process. By 1) For the 16th Sandiganbayan Associate Justice:
no means does the Court intend to strike down the "unanimity rule" as it reflects the JBCs policy
and, therefore, wisdom in its selection of nominees. Even so, the Court refuses to turn a blind eye chanRoblesvirtualLawlibraryYour Excellency:
on the palpable defects in its implementation and the ensuing treatment that Jardeleza received
before the Council. True, Jardeleza has no vested right to a nomination, but this does not prescind chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the Constitution, the Judicial and
from the fact that the JBC failed to observe the minimum requirements of due process. Bar Council (JBC) has the honor to submit the following nominations for the vacancy for the
In criminal and administrative cases, the violation of a partys right to due process raises a serious SIXTEENTH ASSOCIATE JUSTICE of the SANDIGANBAYAN, with their respective votes:
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 chanRoblesvirtualLawlibrary
for lack of jurisdiction.52 This rule may well be applied to the current situation for an opposing view
submits to an undue relaxation of the Bill of Rights. To this, the Court shall not concede. Asthe 1. AGUINALDO, PHILIP A. - 5 votes
branch of government tasked to guarantee that the protection of due process is available to an
individual in proper cases, the Court finds the subject shortlist as tainted with a vice that it is
assigned to guard against. Indeed, the invocation of Section 2, Rule 10 of JBC-009 must be deemed 2. ALHAMBRA, REYNALDO A. - 5 votes
to have never come into operation in light of its erroneous application on the original ground against
Jardelezas integrity. At the risk of being repetitive, the Court upholds the JBCs discretion in the 3. CRUZ, DANILO S. - 5 votes
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, 4. POZON, BENJAMIN T. - 5 votes
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 5. SANDOVAL, DANILO S. - 5 votes
In the Courts study of the petition,the comments and the applicable rules of the JBC, the Court is of
the view that the rules leave much to be desired and should be reviewed and revised. It appears 6. TIMBANG, SALVADOR JR. - 5 votes9
that the provision on the "unanimity rule" is vagueand unfair and, therefore, can be misused or
abused resulting in the deprivation of an applicants right to due process.
Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the 2) For the 17th Sandiganbayan Associate Justice:
collective will of a majority. This should be clarified. Any assertion by a member aftervoting seems to
be unfair because it effectively gives him or her a veto power over the collective votes of the other chanRoblesvirtualLawlibraryYour Excellency:
members in view of the unanimous requirement. While an oppositor-member can recuse himself
orherself, still the probability of annulling the majority vote ofthe Council is quite high. chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the Constitution, the Judicial and
Second, integrity as a ground has not been defined. While the initial impression is that it refers to the Bar Council (JBC) has the honor to submit the following nominations for the vacancy for the
moral fiber of a candidate, it can be, as it has been, used to mean other things. Infact, the minutes of SEVENTEENTH ASSOCIATE JUSTICE of the SANDIGANBAYAN, with their respective votes:
the JBC meetings n this case reflect the lack of consensus among the members as to its precise
definition. Not having been defined or described, it is vague, nebulous and confusing. It must be chanRoblesvirtualLawlibrary
distinctly specified and delineated.
Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be 1. CORPUS-MAALAC, MARYANN E. - 6 votes
invoked only by an outsider as construed by the respondent Executive Secretary or also by a
member?
Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type, they 2. MENDOZA-ARCEGA, MARIA THERESA V. - 6 votes
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.
At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its function. It 3. QUIMBO, RODOLFO NOEL S. - 6 votes
need not be stressed that the rules to be adopted should be fair, reasonable, unambiguous and
consistent with the minimum requirements of due process. 4. DIZON, MA. ANTONIA EDITA CLARIDADES - 5 votes
One final note.
The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his appointment
as a member of the Court.1wphi1 In deference to the Constitution and his wisdom in the exercise 5. SORIANO, ANDRES BARTOLOME - 5 votes10
of his appointing power, the President remains the ultimate judge of a candidate's worthiness.
WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor General
Francis I-I. Jardeleza is deemed INCLUDED in the shortlist submitted to the President for 3) For the 18th Sandiganbayan Associate Justice:
consideration as an Associate Justice of the Supreme Court vice Associate Justice Roberto A.
Abad. chanRoblesvirtualLawlibraryYour Excellency:
The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules relevant
to the observance of due process in its proceedings, particularly JBC-009 and JBC-010, subject to chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the Constitution, the Judicial and
the approval of the Court. Bar Council (JBC) has the honor to submit the following nominations for the vacancy for the
This Decision is immediately EXECUTORY. Immediately notify the Office of the President of this EIGHTEENTH ASSOCIATE JUSTICE of the SANDIGANBAYAN, with their respective votes:
Decision.
SO ORDERED. chanRoblesvirtualLawlibrary
EN BANC
G.R. No. 224302, November 29, 2016 1. BAGUIO, CELSO O. - 5 votes
HON. PHILIP A. AGUINALDO, HON. REYNALDO A. ALHAMBRA, HON. DANILO S. CRUZ, HON.
BENJAMIN T. POZON, HON. SALVADOR V. TIMBANG, JR., AND THE INTEGRATED BAR OF
THE PHILIPPINES (IBP), Petitioners, v. HIS EXCELLENCY PRESIDENT BENIGNO SIMEON C. 2. DE GUZMAN-ALVAREZ, MA. TERESA E. - 5 votes
AQUINO III, HON. EXECUTIVE SECRETARY PAQUITO N. OCHOA, HON. MICHAEL
FREDERICK L. MUSNGI, HON. MA. GERALDINE FAITH A. ECONG, HON. DANILO S. 3. FERNANDEZ, BERNELITO R. - 5 votes
SANDOVAL, HON. WILHELMINA B. JORGE-WAGAN, HON. ROSANA FE ROMERO-MAGLAYA,
HON. MERIANTHE PACITA M. ZURAEK, HON. ELMO M. ALAMEDA, AND HON. VICTORIA C.
FERNANDEZ-BERNARDO, Respondent. 4. PANGANIBAN, ELVIRA DE CASTRO - 5 votes
DECISION
LEONARDO-DE CASTRO, J.:
5. SAGUN, FERNANDO JR. T. - 5 votes
Before this Court is a Petition for Quo Warranto under Rule 66 and Certiorari and Prohibition under
Rule 65 with Application for Issuance of Injunctive Writs1 filed by petitioners Judge Philip A.
Aguinaldo (Aguinaldo) of the Regional Trial Court (RTC), Muntinlupa City, Branch 207; Judge 6. TRESPESES, ZALDY V. - 5 votes11
Reynaldo A. Alhambra (Alhambra) of RTC, Manila, Branch 53; Judge Danilo S. Cruz (D. Cruz) of
RTC, Pasig City, Branch 152; Judge Benjamin T. Pozon (Pozon) of RTC, Makati City, Branch 139;
Judge Salvador V. Timbang, Jr. (Timbang) of RTC, Las Pias City, Branch 253; and the Integrated 4) For the 19th Sandiganbayan Associate Justice:
Bar of the Philippines (IBP), against respondents former President Benigno Simeon C. Aquino III
chanRoblesvirtualLawlibraryYour Excellency:
Petitioners base their instant Petition on the following arguments:ChanRoblesVirtualawlibrary
chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the Constitution, the Judicial and PRESIDENT AQUINO VIOLATED SECTION 9, ARTICLE VIII OF THE 1987 CONSTITUTION IN
Bar Council (JBC) has the honor to submit the following nominations for the vacancy for the THAT:
NINETEENTH ASSOCIATE JUSTICE of the SANDIGANBAYAN, with their respective votes:
chanRoblesvirtualLawlibrary(A) HE DID NOT APPOINT ANYONE FROM THE SHORTLIST
chanRoblesvirtualLawlibrary SUBMITTED BY THE JBC FOR THE VACANCY FOR POSITION OF THE 16TH ASSOCIATE
JUSTICE OF THE SANDIGANBAYAN; AND
1. GUANZON, FRANCES V. - 6 votes
(B) HE APPOINTED UNDERSECRETARY MUSNGI AND JUDGE ECONG AS ASSOCIATE
JUSTICES OF THE SANDIGANBAYAN TO THE VACANCY FOR THE POSITION OF
2. MACARAIG-GUILLEN, MARISSA - 6 votes 21STASSOCIATE JUSTICE OF THE SANDIGANBAYAN.

3. CRUZ, REYNALDO P. - 5 votes (C) THE APPOINTMENTS MADE WERE NOT IN ACCORDANCE WITH THE SHORTLISTS
SUBMITTED BY THE JUDICIAL AND BAR COUNCIL FOR EACH VACANCY, THUS AFFECTING
THE ORDER OF SENIORITY OF THE ASSOCIATE JUSTICES.16chanroblesvirtuallawlibrary
4. PAUIG, VILMA T. - 5 votes According to petitioners, the JBC was created under the 1987 Constitution to reduce the
politicization of the appointments to the Judiciary, i.e., "to rid the process of appointments to the
Judiciary from the political pressure and partisan activities." 17chanrobleslaw
5. RAMOS, RENAN E. - 5 votes
Article VIII, Section 9 of the 1987 Constitution contains the mandate of the JBC, as well as the
6. ROXAS, RUBEN REYNALDO G. - 5 votes12 limitation on the President's appointing power to the Judiciary, thus:ChanRoblesVirtualawlibrary
Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for every
5) For the 20th Sandiganbayan Associate Justice: vacancy. Such appointments need no confirmation.

chanRoblesvirtualLawlibraryYour Excellency: For the lower courts, the President shall issue the appointments within ninety days from the
submission of the list.
chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the Constitution, the Judicial and It is the function of the JBC to search, screen, and select nominees recommended for appointment
Bar Council (JBC) has the honor to submit the following nominations for the vacancy for the to the Judiciary. It shall prepare a list with at least three qualified nominees for a particular vacancy
TWENTIETH ASSOCIATE JUSTICE of the SANDIGANBAYAN, with their respective votes. in the Judiciary to be submitted to the President, who, in turn, shall appoint from the shortlist for said
specific vacancy. Petitioners emphasize that Article VIII, Section 9 of the 1987 Constitution is clear
1. MIRANDA, KARL B. - 6 votes and unambiguous as to the mandate of the JBC to submit a shortlist of nominees to the President
for "every vacancy" to the Judiciary, as well as the limitation on the President's authority to appoint
members of the Judiciary from among the nominees named in the shortlist submitted by the JBC.
2. ATAL-PAO, PERPETUA - 5 votes
In this case, the JBC submitted six separate lists, with five to seven nominees each, for the six
vacancies in the Sandiganbayan, particularly, for the 16 th, 17th, 18th, 19th, 20th and 21st Associate
3. BUNYI-MEDINA, THELMA - 5 votes Justices. Petitioners contend that only nominees for the position of the 16 th Sandiganbayan
Associate Justice may be appointed as the 16th Sandiganbayan Associate Justice, and the same
4. CORTEZ, LUISITO G. - 5 votes goes for the nominees for each of the vacancies for the 17 th, 18th, 19th, 20th, and 21st Sandiganbayan
Associate Justices. However, on January 20, 2016, President Aquino issued the appointment
papers for the six new Sandiganbayan Associate Justices, to wit:ChanRoblesVirtualawlibrary
5. FIEL-MACARAIG, GERALDINE C. - 5 votes
VACANCY IN THE BAR CODE SHORTLISTED
PERSON APPOINTED
6. QUIMPO-SALE, ANGELENE MARY W. - 5 votes SANDIGANBAYAN NO. FOR

- 4 votes13 Michael Frederick L. 21st Associate

7. JACINTO, BAYANI H. 16th Associate Justice PNOY019445
Musngi Justice

6) For the 21st Sandiganbayan Associate Justice: 19th Associate

17th Associate Justice Reynaldo P. Cruz PNOY019446
Justice
chanRoblesvirtualLawlibraryYour Excellency:

chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the Constitution, the Judicial and Geraldine Faith A. 21st Associate
18th Associate Justice PNOY019447
Bar Council (JBC) has the honor to submit the following nominations for the vacancy for the Econg Justice
TWENTY-FIRST ASSOCIATE JUSTICE of the SANDIGANBAYAN, with their respective votes:
Maria Theresa V. 17th Associate
chanRoblesvirtualLawlibrary 19th Associate Justice PNOY019448
Mendoza-Arcega Justice
1. JORGE-WAGAN, WILHELMINA B. - 6 votes
20th Associate
20th Associate Justice Karl B. Miranda PNOY019449
Justice
2. ECONG, GERALDINE FAITH A. - 5 votes

18th Associate
3. ROMERO-MAGLAYA, ROSANNA FE - 5 votes 21st Associate Justice Zaldy V. Trespeses PNOY019450
Justice

4. ZURAEK, MERIANTHE PACITA M. - 5 votes
5. ALAMEDA, ELMO M. - 4 votes
6. FERNANDEZ-BERNARDO, VICTORIA C. - 4 votes
7. MUSNGI, MICHAEL FREDERICK L. - 4 votes14
President Aquino issued on January 20, 2015 the appointment papers for the six new
Sandiganbayan Associate Justices, namely: (1) respondent Musngi; (2) Justice Reynaldo P. Cruz
(R. Cruz); (3) respondent Econg; (4) Justice Maria Theresa V. Mendoza-Arcega (Mendoza-Arcega);
(5) Justice Karl B. Miranda (Miranda); and (6) Justice Zaldy V. Trespeses (Trespeses). The
appointment papers were transmitted on January 25, 2016 to the six new Sandiganbayan Associate
Justices, who took their oaths of office on the same day all at the Supreme Court Dignitaries
Lounge. Respondent Econg, with Justices Mendoza-Arcega and Trespeses, took their oaths of
office before Supreme Court Chief Justice Maria Lourdes P. A. Sereno (Sereno); while respondent
Musngi, with Justices R. Cruz and Miranda, took their oaths of office before Supreme Court
Associate Justice Francis H. Jardeleza (Jardeleza).15chanrobleslaw
Petitioners observe the following infirmities in President Aquino's
appointments:ChanRoblesVirtualawlibrary
a. Michael Frederick L. Musngi, nominated for the vacancy of the 21st Associate Justice,
was appointed as the 16th Associate Justice;
b. Reynaldo P. Cruz, nominated for the vacancy of the 19 th Associate Justice, was
appointed as the 17th Associate Justice;
c. Geraldine Faith A. Econg, also nominated for the vacancy of the 21 st Associate
Justice, but was appointed as the 18th Associate Justice;
d. Maria Theresa V. Mendoza[-Arcega], nominated for the vacancy of the 17 thAssociate
Justice, but was appointed as the 19th Associate Justice;
e. Zaldy V. Trespeses, nominated for the vacancy of the 18 th Associate Justice, but was
appointed as the 21st Associate Justice.
60. Only the appointment of Karl B. Miranda as the 20 th Associate Justice is in accordance
with his nomination.18
Petitioners insist that President Aquino could only choose one nominee from each of the six
separate shortlists submitted by the JBC for each specific vacancy, and no other; and any
appointment made in deviation of this procedure is a violation of the Constitution. Hence, petitioners
pray, among other reliefs, that the appointments of respondents Musngi and Econg, who belonged
to the same shortlist for the position of 21st Associate Justice, be declared null and void for these
were made in violation of Article VIII, Section 9 of the 1987 Constitution.

Arguments of the Petitioners Arguments of the Respondents

Petitioners Aguinaldo, Alhambra, D. Cruz, Pozon, and Timbang (Aguinaldo, et al.), were all
nominees in the shortlist for the 16th Sandiganbayan Associate Justice. They assert that they
possess the legal standing or locus standi to file the instant Petition since they suffered a direct
injury from President Aquino's failure to appoint any of them as the 16 th Sandiganbayan Associate
Justice.
Petitioner IBP avers that it comes before this Court through a taxpayer's suit, by which taxpayers
may assail an alleged illegal official action where there is a claim that public funds are illegally
disbursed, deflected to an improper use, or wasted through the enforcement of an invalid or
unconstitutional law. Petitioner IBP also maintains that it has locus standi considering that the
present Petition involves an issue of transcendental importance to the people as a whole, an
assertion of a public right, and a subject matter of public interest. Lastly, petitioner IBP contends that
as the association of all lawyers in the country, with the fundamental purpose of safeguarding the
administration of justice, it has a direct interest in the validity of the appointments of the members of
the Judiciary.
The Office of the Solicitor General (OSG), on behalf of the Office of the President (OP), filed a
Comment,19 seeking the dismissal of the Petition on procedural and substantive grounds.
On matters of procedure, the OSG argues, as follows:
chanRoblesvirtualLawlibraryFirst, President Aquino should be dropped as a respondent m the
instant case on the ground of his immunity from suit.
Second, petitioners Aguinaldo, et al. cannot institute an action for quo warranto because usurpation
of public office, position, or franchise is a public wrong, and not a private injury. Hence, only the
State can file such an action through the Solicitor General or public prosecutor, under Sections 2
and 3, Rule 6620of the Rules of Court. As an exception, an individual may commence an action
for quo warranto in accordance with Section 5, Rule 6621 of the Rules of Court if he/she claims
entitlement to a public office or position. However, for said individual's action for quo warranto to
prosper, he/she must prove that he/she suffered a direct injury as a result of the usurpation of public
office or position; and that he/she has a clear right, and not merely a preferential right, to the
contested office or position. Herein petitioners Aguinaldo, et al. have failed to show that they are
entitled to the positions now being held by respondents Musngi and Econg, as the inclusion of
petitioners Aguinaldo, et al. in the shortlist for the 16th Sandiganbayan Associate Justice had only
given them the possibility, not the certainty, of appointment to the Sandiganbayan. Petitioners
Aguinaldo, et al., as nominees, only had an expectant right because their appointment to the
Sandiganbayan would still be dependent upon the President's discretionary appointing power.
Third, petitioner IBP can only institute the certiorari and prohibition case, but not the action for quo
warranto against respondents Musngi and Econg because it cannot comply with the direct injury
requirement for the latter. Petitioner IBP justifies its locus standi to file the petition for certiorari and
prohibition by invoking the exercise by this Court of its expanded power of judicial review and
seeking to oust respondents Musngi and Econg as Sandiganbayan Associate Justices based on the
alleged unconstitutionality of their appointments, and not on a claim of usurpation of a public office.
Yet, based on Topacio v. Ong,22 a petition for certiorari or prohibition is a collateral attack on a
public officer's title, which cannot be permitted. Title to a public office can only be contested directly
in a quo warrantoproceeding.
Moreover, it is the JBC, not petitioner IBP, which has legal standing to file the present suit, as the
dispute here is between the JBC and the OP. The fundamental question in this case is "whether the
JBC can corral the discretion of the President to appoint, a core constitutional prerogative, by
designating qualified nominees within specific, artificial numerical categories and forcing the
President to appoint in accordance with those artificial numerical categories." The Court, though, is
barred from deciding said question because the JBC is not a party herein.
Fourth, petitioners have erroneously included Jorge-Wagan, Romero Maglaya, Zuraek, Alameda,
and Fernandez-Bernardo (Jorge-Wagan, et al.) as unwilling co-petitioners in the Petition at bar.
Apart from the fact that Jorge-Wagan, et al. do not claim entitlement to the positions occupied by
respondents Musngi and Econg, non-appointed nominees for the positions of 16 th and
21st Associate Justices of the Sandiganbayan cannot simultaneously claim right to assume two
vacancies in said special court.
And fifth, petitioners disregarded the hierarchy of courts by directly filing the instant Petition for Quo
warranto and Certiorari and Prohibition before this Court. Even in cases where the Court is vested
with original concurrent jurisdiction, it remains a court of last resort, not a court of first instance.
The OSG next addresses the substantive issues.
The OSG submits that the core argument of petitioners stems from their erroneous premise that
there are existing numerical positions in the Sandiganbayan: the 1st being the Presiding Justice,
and the succeeding 2nd to the 21st being the Associate Justices. It is the assertion of the OSG that
the Sandiganbayan is composed of a Presiding Justice and 20 Associate Justices, without any
numerical designations. Presidential Decree No. 1606 and its amendments do not mention
vacancies for the positions of "2nd Associate Justice," "3rd Associate Justice," etc. There are no such
items in the Judiciary because such numerical designations are only used to refer to the seniority or
order of precedence of Associate Justices in collegiate courts such as the Supreme Court, Court of
Appeals, Court of Tax Appeals, and Sandiganbayan.
The OSG further contends that the power to determine the order of precedence of the Associate
Justices of the Sandiganbayan is reposed in the President, as part of his constitutional power to
appoint. Citing Section 1, third paragraph of Presidential Decree No. 1606 23 and Rule II, Section 1 of
the Revised Internal Rules of the Sandiganbayan,24 the OSG explains that the order of precedence
of the Associate Justices of the Sandiganbayan shall be according to the order of their
appointments, that is, according to the dates of their respective commissions, or, when two or more
commissions bear the same date, according to the order in which their commissions had been
issued by the President. It is the averment of the OSG that the constitutional power of the JBC to
recommend nominees for appointment to the Judiciary does not include the power to determine
their seniority. President Aquino correctly disregarded the order of precedence in the shortlists
submitted by the JBC and exercised his statutory power to determine the seniority of the appointed
Sandiganbayan Associate Justices.
The OSG interprets Article VIII, Section 9 of the 1987 Constitution differently from petitioners.
According to the OSG, said provision neither requires nor allows the JBC to cluster nominees for
every vacancy in the Judiciary; it only mandates that for every vacancy, the JBC shall present at
least three nominees, among whom the President shall appoint a member of the Judiciary. As a
result, if there are six vacancies for Sandiganbayan Associate Justice, the JBC shall present, for the
President's consideration, at least 18 nominees for said vacancies. In the case at bar, the JBC
submitted 37 nominees for the six vacancies in the Sandiganbayan; and from said pool of 37
nominees, the President appointed the six Sandiganbayan Associate Justices, in faithful compliance
with the Constitution.
It is also the position of the OSG that the President has the absolute discretion to determine who is
best suited for appointment among all the qualified nominees. The very narrow reading of Article
VIII, Section 9 of the 1987 Constitution proposed by petitioners unreasonably restricts the
President's choices to only a few nominees even when the JBC recognized 37 nominees qualified
for the position of Sandiganbayan Associate Justice. This gives the JBC, apart from its power to
recommend qualified nominees, the power to dictate upon the President which among the qualified
nominees should be contending for a particular vacancy. By dividing nominees into groups and
artificially designating each group a numerical value, the JBC creates a substantive qualification to
various judicial posts, which potentially impairs the President's prerogatives in appointing members
of the Judiciary.
The OSG additionally points out that the JBC made a categorical finding that respondents Musngi
and Econg were "suitably best" for appointment as Sandiganbayan Associate Justice. The functions
of the 16thSandiganbayan Associate Justice are no different from those of the 17 th, 18th, 19th, 20th, or
21stSandiganbayan Associate Justice. Since respondents Musngi and Econg were indubitably
qualified and obtained sufficient votes, it was the ministerial duty of the JBC to include them as
nominees for any of the six vacancies in the Sandiganbayan presented for the President's final
consideration.
Furthermore, the OSG alleges that it is highly unjust to remove respondents Musngi and Econg from
their current positions on the sole ground that the nominees were divided into six groups. The JBC
announced "the opening/reopening, for application or recommendation" of "[s]ix (6) newly-created
positions of Associate Justice of the Sandiganbayan." Respondents Musngi and Econg applied for
the vacancy of "Associate Justice of the Sandiganbayan." In its announcements for interview, the
JBC stated that it would be interviewing applicants for "six (6) newly created positions of Associate
Justice of the Sandiganbayan." It was only on October 26, 2015, the date of submission of the
shortlists, when the nominees had been clustered into six groups. The OSG notes that there are no
JBC rules on the division of nominees in cases where there are several vacancies in a collegiate
court. In this case, the OSG observes that there were no measurable standards or parameters for
dividing the 37 nominees into the six groups. The clustering of nominees was not based on the
number of votes the nominees had garnered. The nominees were not evenly distributed among the
six groups, i.e., there were five nominees for 17th Sandiganbayan Associate Justice; six nominees
for 16th, 18th, and 19th Sandiganbayan Associate Justices; and seven nominees for the 20 th and
21st Sandiganbayan Associate Justices.
The OSG then refers to several examples demonstrating that the previous practice of the JBC was
to submit only one shortlist for several vacancies in a collegiate court.
The other respondents had likewise filed their respective Comments or Manifestations:
chanRoblesvirtualLawlibrary1) In respondent Fernandez-Bernardo's Comment,25cralawred she
recognizes the legal, substantial, and paramount significance of the ruling of the Court on the
interpretation and application of Article VIII, Section 9 of the 1987 Constitution, which will serve as a
judicial precedent for the guidance of the Executive and Legislative Departments, the JBC, the
Bench, and the Bar.
2) Respondent Musngi states in his Manifestation 26 that he will no longer file a separate Comment
and that he adopts all the averments, issues, arguments, discussions, and reliefs in the Comment of
the OSG.
3) In her Comment,27 respondent Jorge-Wagan maintains that she is not the proper party to assail
the validity of the appointment of the 16th Sandiganbayan Associate Justice as she was nominated
for the 21st Sandiganbayan Associate Justice; and that she is also not the proper party to seek the
nullification of the appointments of respondents Musngi and Econg as Sandiganbayan Associate
Justices. Not being a proper party-in-interest, respondent Jorge-Wagan argues that she cannot be
considered an "unwilling co-plaintiff."
4) Respondent Romero-Maglaya makes the following averments in her Manifestation/Comment 28:
that she should not have been impleaded as a respondent or an unwilling co-plaintiff in the instant
Petition because her rights as a nominee for judicial appointment were not violated; that she had no
claim of entitlement to the position of Sandiganbayan Associate Justice; and that she had no
participation in the alleged violation of the Constitution or exercise of grave abuse of discretion
amounting to lack or excess of jurisdiction.
5) Respondent Econg manifests in her Comment29 that while she is adopting in toto the arguments
in the Comment of the OSG, she is also making certain factual clarifications and additional
procedural and substantive averments.
Respondent Econg clarifies that her real name is Geraldine Faith A. Econg, and not Ma. Geraldine
Faith A. Econg.
Respondent Econg believes that the present Petition is really for quo warranto because it seeks to
declare null and void the respective appointments of respondents Musngi and Econg. Respondent
Econg, however, asseverates that petitioners Aguinaldo, et al. have no clear, unquestionable
franchise to the Office of Associate Justice of the Sandiganbayan simply because they had been
included in the shortlist submitted for the President's consideration. Nomination is not equivalent to
appointment and the removal of respondents Musngi and Econg will not automatically grant
petitioners Aguinaldo, et al. the right to the Office of Associate Justice of the Sandiganbayan.
Petitioners Aguinaldo, et al., except for petitioner Alhambra, are even uncertain about their right to
the position/s of 16th and/or 21st Sandiganbayan Associate Justice/s as they have also applied for
the position of Sandiganbayan Associate Justice in lieu of Sandiganbayan Associate Justice
Teresita V. Diaz-Baldos, who eventually retired on July 22, 2016. Even assuming for the sake of
argument that petitioners' alternative remedy of certiorari is proper, respondent Econg contends that
petitioners only had 60 days to file such a petition from January 20, 2016, the date she and
respondent Musngi were appointed. Petitioners belatedly filed their Petition before the Court on May
17, 2016.
Respondent Econg also raises the concern that if the Court affirms the petitioners' position that
there are no valid appointments for the 16th and 21st Sandiganbayan Associate Justices, the
seniority or order of precedence among the Sandiganbayan Associate Justices will be adversely
affected. Respondent Econg avers that there was only one list of nominees for the six vacant
positions of Sandiganbayan Associate Justice, considering that: (a) the announcement of the
opening for application/recommendation was for the six newly-created positions of Sandiganbayan
Associate Justice; (b) respondent Econg's application was for the six newly-created positions of
Sandiganbayan Associate Justice; and (c) the announcement of the public interview of candidates
was for the six newly-created positions of Sandiganbayan Associate Justice.
Thus, respondent Econg prays for, among other reliefs, the dismissal of the instant Petition for Quo
Warranto and Certiorari and Prohibition for lack of merit, and the declaration that the appointments
of respondents Musngi and Econg as Sandiganbayan Associate Justices are valid.
6) In respondent Sandoval's Comment,30 he avows that he opts not to join the petitioners as he
subscribes to the principle that the heart and core of the President's power to appoint is the freedom
to choose. The power to appoint rests on the President and the President alone. Respondent
Sandoval has already accepted the fact that he was not appointed despite being nominated by the
JBC for the position of Sandiganbayan Associate Justice and he is looking forward to another
opportunity to apply for a higher position in the Judiciary.
Respondents Zuraek and Almeda have not filed their comments despite notice and are deemed to
have waived their right to do so.
On November 26, 2016, the JBC belatedly filed a Motion for Intervention in the Petition at bar, or
more than six months from the filing of the herein Petition on May 17, 2016 and after Chief Justice
Sereno, the Chairperson of the JBC herself, administered the oath of office of respondent Econg,
whose appointment is now being questioned for having been done in disregard of the clustering of
nominees by the JBC.
II
The Ruling of the Court
The Court takes cognizance of the present Petition despite several procedural infirmities
given the transcendental importance of the constitutional issue raised herein.
The Petition at bar is for (a) Quo Warranto under Rule 66 of the Revised Rules of Court; and
(b) Certiorari and Prohibition under Rule 65 of the same Rules.
Rule 66 of the Revised Rules of Court particularly identifies who can file a special civil action of Quo
Warranto, to wit:ChanRoblesVirtualawlibrary
RULE 66
Quo Warranto
Sec. 1. Action by Government against individuals. - An action for the usurpation of a public office,
position or franchise may be commenced by a verified petition brought in the name of the Republic
of the Philippines against:
chanRoblesvirtualLawlibrary(a) A person who usurps, intrudes into, or unlawfully holds or exercises
a public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for
the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act
Sec. 2. When Solicitor General or public prosecutor must commence action. - The Solicitor General
or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any case specified in the preceding section can be
established by proof, must commence such action.
Sec. 3. When Solicitor General or public prosecutor may commence action with permission of court.
- The Solicitor General or a public prosecutor may, with the permission of the court in which the
action is to be commenced, bring such an action at the request and upon the relation of another
person; but in such case the officer bringing it may first require an indemnity for the expenses and
costs of the action in an amount approved by and to be deposited in the court by the person at
whose request and upon whose relation the same is brought.
xxxx
Sec. 5. When an individual may commence such an action. - A person claiming to be entitled to a
public office or position usurped or unlawfully held or exercised by another may bring an action
therefor in his own name.
In Topacio v. Ong,31 the Court pronounced that:ChanRoblesVirtualawlibrary
A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested
public office and to oust the holder from its enjoyment. It is brought against the person who is
alleged to have usurped, intruded into, or unlawfully held or exercised the public office, and may be
commenced by the Solicitor General or a public prosecutor, as the case may be, or by any person
claiming to be entitled to the public office or position usurped or unlawfully held or exercised by
another.
Nothing is more settled than the principle, which goes back to the 1905 case of Acosta v. Flor,
reiterated in the recent 2008 case of Feliciano v. Villasin, that for a quo warrantopetition to be
successful, the private person suing must show a clear right to the contested office. In fact,
not even a mere preferential right to be appointed thereto can lend a modicum of legal
ground to proceed with the action. (Emphasis supplied, citations omitted.)
Petitioners Aguinaldo, et al., as nominees for the 16th Saridiganbayan Associate Justice, did not
have a clear right to said position, and therefore not proper parties to a quo warranto proceeding.
Being included in the list of nominees had given them only the possibility, but not the certainty, of
being appointed to the position, given the discretionary power of the President in making judicial
appointments. It is for this same reason that respondents Jorge-Wagan, et al., nominees for the
21st Sandiganbayan Associate Justice, may not be impleaded as respondents or unwilling plaintiffs
in a quo warranto proceeding. Neither can the IBP initiate a quo warranto proceeding to oust
respondents Musngi and Econg from their currents posts as Sandiganbayan Associate Justices for
the IBP does not qualify under Rule 66, Section 5 of the Revised Rules of Court as an individual
claiming to be entitled to the positions in question.
Nevertheless, the Court takes in consideration the fact that the present Petition is also
for Certiorari and Prohibition under Rule 65 of the Revised Rules of Court, which alleges that
President Aquino violated Article VIII, Section 9 of the 1987 Constitution and committed grave abuse
of discretion amounting to lack or excess of jurisdiction in his appointment of respondents Musngi
and Econg as Sandiganbayan Associate Justices.
Article VIII, Section 1 of the 1987 Constitution vests upon the Court the expanded power of judicial
review, thus:ChanRoblesVirtualawlibrary
Article VIII
Sec. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
The Court recognized in Jardeleza v. Sereno (Jardeleza Decision)32 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."
In opposing the instant Petition for Certiorari and Prohibition, the OSG cites Topacio in which the
Court declares that title to a public office may not be contested except directly, by quo
warranto proceedings; and it cannot be assailed collaterally, such as by certiorari and
prohibition.33chanrobleslaw
However, Topacio is not on all fours with the instant case. In Topacio, the writs of certiorari and
prohibition were sought against Sandiganbayan Associate Justice Gregory S. Ong on the ground
that he lacked the qualification of Filipino citizenship for said position. In contrast, the present
Petition for Certiorari and Prohibition puts under scrutiny, not any disqualification on the part of
respondents Musngi and Econg, but the act of President Aquino in appointing respondents Musngi
and Econg as Sandiganbayan Associate Justices without regard for the clustering of nominees into
six separate shortlists by the JBC, which allegedly violated the Constitution and constituted grave
abuse of discretion amounting to lack or excess of jurisdiction. This would not be the first time that
the Court, in the exercise of its expanded power of judicial review, takes cognizance of a petition
for certiorari that challenges a presidential appointment for being unconstitutional or for having been
done in grave abuse of discretion. As the Court held in Funa v. Villar34:ChanRoblesVirtualawlibrary
Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of
the availment of certiorari as a medium to inquire on whether the assailed appointment of
respondent Villar as COA Chairman infringed the constitution or was infected with grave abuse of
discretion. For under the expanded concept of judicial review under the 1987 Constitution, the
corrective hand of certiorari may be invoked 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." "Grave abuse of discretion"
denotes:ChanRoblesVirtualawlibrary
such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in
other words, where the power is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty
or to a virtual refusal to perform the duty enjoined or to act in contemplation of law.
We find the remedy of certiorari applicable to the instant case in view of the allegation that then
President Macapagal-Arroyo exercised her appointing power in a manner constituting grave abuse
of discretion. (Citations omitted.)
Even so, the Court finds it proper to drop President Aquino as respondent taking into account that
when this Petition was filed on May 17, 2016, he was still then the incumbent President who enjoyed
immunity from suit. The presidential immunity from suit remains preserved in the system of
government of this country, even though not expressly reserved in the 1987 Constitution.35 The
President is granted the privilege of immunity from suit "to assure the exercise of Presidential duties
and functions free from any hindrance or distraction, considering that being the Chief Executive of
the Government is a job that, aside from requiring all of the office-holder's time, also demands
undivided attention."36 It is sufficient that former Executive Secretary Ochoa is named as respondent
herein as he was then the head of the OP and was in-charge of releasing presidential appointments,
including those to the Judiciary.37chanrobleslaw
Since the Petition at bar involves a question of constitutionality, the Court must determine the locus
standi or legal standing of petitioners to file the same. The Court will exercise its power of judicial
review only if the case is brought before it by a party who has the legal standing to raise the
constitutional or legal question. "Legal standing" means 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; while "interest" refers to material interest, an interest in issue and to be
affected by the decree or act assailed, as distinguished from mere interest in the question involved,
or a mere incidental interest. The interest of the plaintiff must be personal and not one based on a
desire to vindicate the constitutional right of some third and unrelated party. 38chanrobleslaw
In David v. Macapagal-Arroyo,39 the Court acknowledged exceptional circumstances which justified
liberality and relaxation of the rules on legal standing:ChanRoblesVirtualawlibrary
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He could
be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to
adequately show that he is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of relief as a "citizen" or
"taxpayer."
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the former, the plaintiff
is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter
of mere public right, however ... the people are the real parties... It is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly pursued and punished,
and that a public grievance be remedied." With respect to taxpayer's suits, 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."
xxxx
However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the
Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this
Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury,
they have been allowed to sue under the principle of "transcendental importance." Pertinent are the
following cases:ChanRoblesVirtualawlibrary
(1) Chavez v. Public Estates Authority, where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora, wherein the Court held that "given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the suit
to prosper despite the lack of direct injury to the parties seeking judicial review" of the Visiting
Forces Agreement;
(3) Lim v. Executive Secretary, while the Court noted that the petitioners may not file suit in their
capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress'
taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora, that
in cases of transcendental importance, the cases must be settled promptly and definitely and
standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:ChanRoblesVirtualawlibrary
(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.
While neither petitioners Aguinaldo, et al. nor petitioner IBP have legal standing to file a petition
for quo warranto, they have legal standing to institute a petition for certiorari.
The clustering of nominees by the JBC, which the President, for justifiable reasons, did not follow,
could have caused all nominees direct injury, thus, vesting them with personal and substantial
interest, as the clustering limited their opportunity to be considered for appointment to only one of
the six vacant positions for Sandiganbayan Associate Justice instead of all the six vacant positions
to which the JBC found them as qualified for appointment. This is the far-reaching adverse
consequence to petitioners Aguinaldo, et al. that they have missed. More importantly, for a complete
resolution of this Petition, the Court must inevitably address the issue of the validity of the clustering
of nominees by the JBC for simultaneous vacancies in collegiate courts, insofar as it seriously
impacts on the constitutional power of the President to appoint members of the Judiciary, which will
be explained below.
One of the fundamental purposes of the IBP is to improve the administration of justice. 40 As the
association of all lawyers in the country, petitioner IBP has an interest in ensuring the validity of the
appointments to the Judiciary. It is recognized that the administration of justice is primarily a joint
responsibility of the judge and the lawyer.41 Definitely, lawyers cannot effectively discharge their
duties if they entertain doubts, or worse, had lost their faith in judges and/or justices. It is clearly
imperative for the IBP to prevent that situation from happening by exercising vigilance and ensurmg
that the judicial appointment process remains transparent and credible.
Given that the constitutional issue in the Petition at bar is of transcendental importance and of public
interest, and for the above mentioned reasons, the Court shall accord petitioners the legal standing
to sue.

The instant Petition fundamentally challenges President Aquino's appointment of respondents
Musngi and Econg as the 16th and 18th Sandiganbayan Associate Justices. Petitioners contend that
only one of them should have been appointed as both of them were included in one cluster of
nominees for the 21stSandiganbayan Associate Justice. The Petition presents for resolution of the
Court the issue of whether President Aquino violated Article VIII, Section 9 of the 1987 Constitution
and gravely abused his discretionary power to appoint members of the Judiciary when he
disregarded the clustering by the JBC of the nominees for each specific vacant position of
Sandiganbayan Associate Justice. The issue is of paramount importance for it affects the validity of
appointments to collegiate courts and, ultimately, the administration of justice, for if there are
questions as to the right of the appointee to his position as judge/justice, then doubts shall likewise
shadow all his acts as such. This will indubitably undermine the faith of the public in the judicial
system. Since at hand is a constitutional issue of first impression, which will likely arise again when
there are simultaneous vacancies in collegiate courts, it is imperative for the Court to already
resolve the same for the guidance of the Bench and Bar, and the general public as well.
The OSG also prays for the dismissal of this Petition on the additional ground that petitioners, by
coming directly before this Court, violated the hierarchy of courts. Relevant to this matter are the
following pronouncements of the Court in Querubin v. Commission on
Elections42:ChanRoblesVirtualawlibrary
Notwithstanding the non-exclusivity of the original jurisdiction over applications for the issuance of
writs of certiorari, however, the doctrine of hierarchy of courts dictates that recourse must first be
made to the lower-ranked court exercising concurrent jurisdiction with a higher court. The rationale
behind the principle is explained in Baez, Jr. v. Concepcion in the following
wise:ChanRoblesVirtualawlibrary
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that
the policy is not to be ignored without serious consequences. The strictness of the policy is
designed to shield the Court from having to deal with causes that are also well within the
competence of the lower courts, and thus leave time to the Court to deal with the more fundamental
and more essential tasks that the Constitution has assigned to it. The Court may act on petitions for
the extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or
when serious and important reasons exist to justify an exception to the policy.
Petitioners do not have the absolute and unrestrained freedom of choice of the court to which an
application for certiorari will be directed. Indeed, referral to the Supreme Court as the court of last
resort will simply be empty rhetoric if party-litigants are able to flout judicial hierarchy at will. The
Court reserves the direct invocation of its jurisdiction only when there are special and important
reasons clearly and especially set out in the petition that would justify the same.
In the leading case of The Diocese of Bacolod v. Comelec, the Court enumerated the specific
instances when direct resort to this Court is allowed, to wit:ChanRoblesVirtualawlibrary
(a) When there are genuine issues of constitutionality that must be addressed at the most
immediate time;
(b) When the issues involved are of transcendental importance;
(c) Cases of first impression;
(d) When the constitutional issues raised are best decided by this Court;
(e) When the time element presented in this case cannot be ignored;
(f) When the petition reviews the act of a constitutional organ;
(g) When there is no other plain, speedy, and adequate remedy in the ordinary course of law;
(h) When public welfare and the advancement of public policy so dictates, or when demanded by
the broader interest of justice;
(i) When the orders complained of are patent nullities; and
(j) When appeal is considered as clearly an inappropriate remedy. (Citations omitted.)
Inasmuch as the Petition at bar involves a constitutional question of transcendental importance and
of first impression and demanded by the broader interest of justice, the Court, in the exercise of its
discretion, resolves to exercise primary jurisdiction over the same.
Lastly, respondent Econg opposes the Petition at bar for being filed out of time. According to
respondent Econg, the 60-day period for petitioners to file this Petition commenced on January 20,
2016, the date she and her co-respondent Musngi were appointed by President Aquino. Based on
respondent Econg's argument, the 60-day period ended on March 20, 2016, Sunday, so petitioners
only had until March 21, 2016, Monday, to timely file the Petition. For their part, petitioners aver that
after learning of the appointments of respondents Musngi and Econg as Sandiganbayan Associate
Justices from the media, they obtained copies of the shortlists for the vacancies for the 16 th to the
21st Sandiganbayan Associate Justices on March 22, 2016. Counting the 60-day period from March
22, 2016, petitioners allege that they had until May 21, 2016 to file their Petition.
Rule 65, Section 4 of the Revised Rules of Court explicitly states that certiorari should be instituted
within a period of 60 days from notice of the judgment, order, or resolution sought to be assailed.
The 60-day period is inextendible to avoid any unreasonable delay that would violate the
constitutional rights of parties to a speedy disposition of their case. The question though is when
said 60-day period began to run in this case. The Court refers to its ruling in Velicaria-Garafil v.
Office of the President.43 In said case, the Court declared that appointment is a process. For an
appointment to be valid, complete, and effective, four elements must always concur, to wit: "(1)
authority to appoint and evidence of the exercise of authority, (2) transmittal of the appointment
paper and evidence of the transmittal, (3) a vacant position at the time of appointment, and (4)
receipt of the appointment paper and acceptance of the appointment by the appointee who
possesses all the qualifications and none of the disqualifications." The Court expounded on the
importance of the last element as follows:ChanRoblesVirtualawlibrary
Acceptance is indispensable to complete an appointment. Assuming office and taking the oath
amount to acceptance of the appointment. An oath of office is a qualifying requirement for a public
office, a prerequisite to the full investiture of the office.
Javier v. Reyes is instructive in showing how acceptance is indispensable to complete an
appointment. On 7 November 1967, petitioner Isidro M. Javier (Javier) was appointed by then Mayor
Victorino B. Aldaba as the Chief of Police of Malolos, Bulacan. The Municipal Council confirmed and
approved Javier's appointment on the same date. Javier took his oath of office on 8 November
1967, and subsequently discharged the rights, prerogatives, and duties of the office. On 3 January
1968, while the approval of Javier's appointment was pending with the CSC, respondent Purificacion
C. Reyes (Reyes), as the new mayor of Malolos, sent to the CSC a letter to recall Javier's
appointment. Reyes also designated Police Lt. Romualdo F. Clemente as Officer-in-Charge of the
police department. The CSC approved Javier's appointment as permanent on 2 May 1968, and
even directed Reyes to reinstate Javier. Reyes, on the other hand, pointed to the appointment of
Bayani Bernardo as Chief of Police of Malolos, Bulacan on 4 September 1967. This Court ruled that
Javier's appointment prevailed over that of Bernardo. It cannot be said that Bernardo accepted his
appointment because he never assumed office or took his oath.
Excluding the act of acceptance from the appointment process leads us to the very evil which we
seek to avoid (i.e., antedating of appointments). Excluding the act of acceptance will only provide
more occasions to honor the Constitutional provision in the breach. The inclusion of acceptance by
the appointee as an integral part of the entire appointment process prevents the abuse of the
Presidential power to appoint. It is relatively easy to antedate appointment papers and make it
appear that they were issued prior to the appointment ban, but it is more difficult to simulate the
entire appointment process up until acceptance by the appointee. 44 (Citations omitted.)
The records show that on January 25, 2016, the appointment papers were transmitted to and
received by the six newly-appointed Sandiganbayan Associate Justices, including respondents
Musngi and Econg, who, on the same day, already took their oaths of office. Therefore, pursuant
to Velicaria-Garafil, the appointment process became complete and effective on January 25, 2016. If
the Court is to count the 60-day reglementary period for filing a petition for certiorari from January
25, 2016, it expired on March 25, 2016. The present Petition for Certiorari and Prohibition was filed
on May 17, 2016.
Just like any rule, however, there are recognized exceptions to the strict observance of the 60-day
period for filing a petition for certiorari, viz.: (1) most persuasive and weighty reasons; (2) to relieve a
litigant from an injustice not commensurate with his failure to comply with the prescribed procedure;
(3) good faith of the defaulting party by immediately paying within a reasonable time from the time of
the default; (4) the existence of special or compelling circumstances; (5) the merits of the case; (6) a
cause not entirely attributable to the fault or negligence of the party favored by the suspension of the
rules; (7) a lack of any showing that the review sought is merely frivolous and dilatory; (8) the other
party will not be unjustly prejudiced thereby; (9) fraud, accident, mistake, or excusable negligence
without appellant's fault; (10) peculiar legal and equitable circumstances attendant to each case;
(11) in the name of substantial justice and fair play; (12) importance of the issues involved; and (13)
exercise of sound discretion by the judge guided by all the attendant circumstances. There should
be an effort, though, on the part of the party invoking liberality to advance a reasonable or
meritorious explanation for his/her failure to comply with the rules. 45chanrobleslaw
The peculiar circumstances of this case, plus the importance of the issues involved herein, justify
the relaxation of the 60-day period for the filing of this Petition for Certiorari and Prohibition. Indeed,
the official act assailed by petitioners is the appointment by President Aquino of respondents Musngi
and Econg as Sandiganbayan Associate Justices, which was completed on January 25, 2016 when
said respondents took their oaths of office. Yet, petitioners could not have sought remedy from the
Court at that point. As basis for petitioners' opposition to the said appointments, they needed to see
and secure copies of the shortlists for the 16th to the 21st Sandiganbayan Associate Justices. It was
only after petitioners obtained copies of all six shortlists on March 22, 2016 that petitioners would
have been able to confirm that no one from the shortlist for the 16 th Sandiganbayan Associate
Justice was appointed to any of the six vacancies for Sandiganbayan Associate Justice; and that
respondents Musngi and Econg, both in the shortlist for the 21 st Sandiganbayan Associate Justice,
were appointed as the 16th and 18thSandiganbayan Associate Justices, respectively. In addition,
respondent Econg is not unjustly prejudiced by the delay, but will even benefit from the Court
resolving once and for all the questions on her right to the position of Sandiganbayan Associate
Justice.
The Court reiterates that there can be no valid objection to its discretion to waive one or some
procedural requirements if only to remove any impediment to address and resolve the constitutional
question of transcendental importance raised in this Petition, the same having farreaching
implications insofar as the administration of justice is concemed.46chanrobleslaw
President Aquino did not violate the Constitution or commit grave abuse of discretion in
disregarding the clustering of nominees into six separate shortlists for the six vacancies for
Sandiganbayan Associate Justice.
Article VIII, Section 9 of the 1987 Constitution provides that "[t]he Members of the Supreme Court
and judges of lower courts shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy."
The appointment process for the Judiciary seems simple enough if there is only one vacancy to
consider at a time. The power of the President to appoint members of the Judiciary is beyond
question, subject to the limitation that the President can only appoint from a list of at least three
nominees submitted by the JBC for every vacancy. However, the controversy in this case arose
because by virtue of Republic Act No. 10660, creating two new divisions of the Sandiganbayan with
three members each, there were six simultaneous vacancies for Associate Justice of said collegiate
court; and that the JBC submitted six separate shortlists for the vacancies for the 16 th to the
21st Sandiganbayan Associate Justices.
On one hand, petitioners assert that President Aquino's power to appoint is limited to each shortlist
submitted by the JBC. President Aquino should have appointed the 16 th Sandiganbayan Associate
Justice from the nominees in the shortlist for the 16 th Sandiganbayan Associate Justice, the
17th Sandiganbayan Associate Justice from the nominees in the shortlist for the 17 th Sandiganbayan
Associate Justice, and so on and so forth. By totally overlooking the nominees for the
16th Sandiganbayan Associate Justice and appointing respondents Musngi and Econg, who were
both nominees for the 21st Sandiganbayan Associate Justice, as the 16th and 18th Sandiganbayan
Associate Justices, respectively, President Aquino violated the 1987 Constitution and committed
grave abuse of discretion amounting to lack or excess of jurisdiction.
Respondents, on the other hand, maintain that President Aquino acted in accordance with the 1987
Constitution and well-within his discretionary power to appoint members of the Judiciary when he
disregarded the clustering of nominees by the JBC into six separate shortlists and collectively
considered all 37 nominees named in said shortlists for the six vacancies for Sandiganbayan
Associate Justice.
The primordial question then for resolution of the Court is whether President Aquino, under the
circumstances, was limited to appoint only from the nominees in the shortlist submitted by the JBC
for each specific vacancy.
The Court answers in the negative.
The JBC was created under the 1987 Constitution with the principal function of recommending
appointees to the Judiciary.47 It is a body, representative of all the stakeholders in the judicial
appointment process, intended to rid the process of appointments to the Judiciary of the evils of
political pressure and partisan activities.48 The extent of the role of the JBC in recommending
appointees vis-a-vis the power of the President to appoint members of the Judiciary was discussed
during the deliberations of the Constitutional Commission (CONCOM) on July 10, 1986,
thus:ChanRoblesVirtualawlibrary
MR. RODRIGO: Let me go to another point then.
Furthermore, the JBC, in sorting the qualified nominees into six clusters, one for every vacancy,
could influence the appointment process beyond its constitutional mandate of recommending
qualified nominees to the President. Clustering impinges upon the President's power of
appointment, as well as restricts the chances for appointment of the qualified nominees, because (1)
the President's option for every vacancy is limited to the five to seven nominees in the cluster; and
(2) once the President has appointed from one cluster, then he is proscribed from considering the
other nominees in the same cluster for the other vacancies. The said limitations are utterly without
legal basis and in contravention of the President's appointing power.

On page 2, Section 5, there is a novel provision about appointments of members of the Supreme
Court and of judges of lower courts. At present it is the President who appoints them. If there is a
Commission on Appointments, then it is the President with the confirmation of the Commission on
Appointments. In this proposal, we would like to establish a new office, a sort of a board composed
of seven members, called the Judicial and Bar Council. And while the President will still appoint the
members of the judiciary, he will be limited to the recommendees of this Council.
MR. CONCEPCION: That is correct.
MR. RODRIGO: And the Council will, whenever there is a vacancy, recommend three.
MR. CONCEPCION: At least three for every vacancy.
MR. RODRIGO: And the President cannot appoint anybody outside of the three recommendees.
MR. CONCEPCION: Nomination by the Council would be one of the qualifications for
appointment.49chanroblesvirtuallawlibrary
It is apparent from the aforequoted CONCOM deliberations that nomination by the JBC shall be a
qualification for appointment to the Judiciary, but this only means that the President cannot appoint
an individual who is not nominated by the JBC. It cannot be disputed herein that respondents
Musngi and Econg were indeed nominated by the JBC and, hence, qualified to be appointed as
Sandiganbayan Associate Justices.
It should be stressed that the power to recommend of the JBC cannot be used to restrict or limit the
President's power to appoint as the latter's prerogative to choose someone whom he/she considers
worth appointing to the vacancy in the Judiciary is still paramount. As long as in the end, the
President appoints someone nominated by the JBC, the appointment is valid. On this score, the
Court finds herein that President Aquino was not obliged to appoint one new Sandiganbayan
Associate Justice from each of the six shortlists submitted by the JBC, especially when the
clustering of nominees into the six shortlists encroached on President Aquino's power to appoint
members of the Judiciary from all those whom the JBC had considered to be qualified for the same
positions of Sandiganbayan Associate Justice.
Moreover, in the case at bar, there were six simultaneous vacancies for the position of
Sandiganbayan Associate Justice, and the JBC cannot, by clustering of the nominees, designate a
numerical order of seniority of the prospective appointees. The Sandiganbayan, a collegiate court, is
composed of a Presiding Justice and 20 Associate Justices divided into seven divisions, with three
members each. The numerical order of the seniority or order of preference of the 20 Associate
Justices is determined pursuant to law by the date and order of their commission or appointment by
the President.
To recall, the JBC invited applications and recommendations and conducted interviews for the "six
newly created positions of Associate Justice of the Sandiganbayan." Applicants, including
respondents Musngi and Econg, applied for the vacancy for "Associate Justice of the
Sandiganbayan." Throughout the application process before the JBC, the six newly-created
positions of Sandiganbayan Associate Justice were not specifically identified and differentiated from
one another for the simple reason that there was really no legal justification to do so. The
requirements and qualifications, as well as the power, duties, and responsibilities are the same for
all the Sandiganbayan Associate Justices. If an individual is found to be qualified for one vacancy,
then he/she is also qualified for all the other vacancies. It was only at the end of the process that the
JBC precipitously clustered the 37 qualified nominees into six separate shortlists for each of the six
vacant positions.
The Court notes that the clustering of nominees is a totally new practice of the JBC. Previously, the
JBC submitted only one shortlist for two or more vacancies in a collegiate court. Worth reproducing
below are the examples cited by the OSG:ChanRoblesVirtualawlibrary
77. For instance, in June 2011, there were 2 vacancies for Associate Justice of the Supreme Court.
Out of 30 candidates, the JBC submitted to the President only 1 short list of 6 nominees. Based on
this short list, President Aquino appointed Associate Justices Bienvenido L. Reyes, and Estela
Perlas-Bernabe.
78. In January 2012, there were 3 vacancies for Associate Justice of the CA. Out of sixty-three (63)
candidates, the JBC prepared only 1 short list of 13 nominees for these 3 vacancies. Based on this
short list, President Aquino appointed Associate Justices Ma. Luisa C. QuijanoPadilla, Renate C.
Francisco, and Jhosep Y. Lopez.
79. In June 2012, there were 3 vacancies for Associate Justice of the CA. Out of 53 candidates, the
JBC submitted to the President only 1 short list of 14 nominees who obtained the required number
of votes. Based on this short list, President Aquino appointed Associate Justices Henri Jean Paul B.
Inting, Oscar V. Badelies, and Marie Christine Azcarraga Jacob. 52chanroblesvirtuallawlibrary
Additionally, in 1995, when Republic Act No. 7975 increased the divisions in the Sandiganbayan
from three to five, which similarly created six simultaneous vacant positions of Sandiganbayan
Associate Justice, the JBC, with then Supreme Court Chief Justice Andres R. Narvasa as
Chairman, submitted a single list of nominees from which former President Fidel V. Ramos
subsequently chose his six appointees. Reproduced in full below was the nomination submitted by
the JBC on said occasion:
July 17, 1997
HIS EXCELLENCY
PRESIDENT FIDEL V. RAMOS
Malacaan, Manila

This is clear under Section 1, paragraph 3 of Presidential Decree No. 1606, which Dear Mr. President:
reads:ChanRoblesVirtualawlibrary
Sec. 1. Sandiganbayan; composition; qualifications; tenure; removal and compensation. - x x x chanRoblesvirtualLawlibraryPursuant to the provisions of Article VIII, Section 9 of the Constitution,
the Judicial and Bar Council has the honor to submit the nominations (in alphabetical order) for six
xxxx (6) positions of Associate Justice of the Sandiganbayan, per the JBC Minutes of July 9 and 16,
1997:ChanRoblesVirtualawlibrary
The Presiding Justice shall be so designated in his commission and the other Justices shall have 1. Asuncion, Elvi John S.
precedence according to the dates of their respective commissions, or, when the commissions of 2. Badoy Jr., Anacleto D.
two or more of them shall bear the same date, according to the order in which their commissions 3. Castaeda Jr., Catalina D.
have been issued by the President. 4. De Castro, Teresita Leonardo
Consistent with the foregoing, Rule II, Section 1(b) of the Revised Internal Rules of the 5. Fineza, Antonio J.
Sandiganbayan similarly provides:ChanRoblesVirtualawlibrary 6. Flores, Alfredo C.
Sec. 1. Composition of the Court and Rule on Precedence.- 7. Gustilo, Alfredo J.
8. Hernandez, Jose R.
xxxx 9. Ilarde, Ricardo M.
10. Laggui, Pedro N.
(b) Rule on Precedence - The Presiding Justice shall enjoy precedence over the other members of 11. Lee Jr., German G.
the Sandiganbayan in all official functions. The Associate Justices shall have precedence according 12. Legaspi, Godofredo L.
to the order of their appointments. 13. Makasiar, Ramon P.
Apropos herein is the following ruling of the Court in Re: Seniority Among the Four (4) Most Recent 14. Mallillin, Hesiquio R.
Appointments to the Position of Associate Justices of the Court of Appeals,50 which involved the 15. Martinez, Wilfredo C.
Court of Appeals, another collegiate court:ChanRoblesVirtualawlibrary 16. Mirasol, Teodulo E.
For purposes of appointments to the judiciary, therefore, the date the commission has been signed 17. Nario, Narciso S.
by the President (which is the date appearing on the face of such document) is the date of the 18. Navarro, Flordelis Ozaeta
appointment. Such date will determine the seniority of the members of the Court of Appeals in 19. Ortile, Senecio D.
connection with Section 3, Chapter I of BP 129, as amended by RA 8246. In other words, the 20. Pineda, Ernesto L.
earlier the date of the commission of an appointee, the more senior he/she is over the other 21. Ponferrada, Bernardo T.
subsequent appointees. It is only when the appointments of two or more appointees bear the 22. Quimsing, Godofredo P.
same date that the order of issuance of the appointments by the President becomes material. 23. Rivera, Candido V.
This provision of statutory law (Section 3, Chapter I of BP 129, as amended by RA 8246) controls 24. Rosario Jr., Eriberto U.
over the provisions of the 2009 IRCA which gives premium to the order of appointments as 25. Salonga, Josefina Guevara
transmitted to this Court. Rules implementing a particular law cannot override but must give way to 26. Sultan, Justo M.
the law they seek to implement. (Emphasis supplied.) 27. Umali, Mariano M.
Evidently, based on law, rules, and jurisprudence, the numerical order of the Sandiganbayan Their respective curriculum vitae are hereto attached.
Associate Justices cannot be determined until their actual appointment by the President. Once more, on November 23, 2009, the JBC, then headed by Supreme Court Chief Justice Reynato
S. Puno (Puno), submitted to former President Gloria Macapagal-Arroyo (Macapagal-Arroyo) a
It bears to point out that part of the President's power to appoint members of a collegiate court, such single list of nominees for two vacant positions of Supreme Court Associate Justice, from which
as the Sandiganbayan, is the power to determine the seniority or order of preference of such newly President Macapagal-Arroyo ultimately appointed Associate Justices Jose P. Perez and Jose C.
appointed members by controlling the date and order of issuance of said members' appointment or Mendoza. The letter of nomination of the JBC reads:
commission papers. By already designating the numerical order of the vacancies, the JBC would be November 23, 2009
establishing the seniority or order of preference of the new Sandiganbayan Associate Justices even
before their appointment by the President and, thus, unduly arrogating unto itself a vital part of the Her Excellency
President's power of appointment. President Gloria Macapagal Arroyo
Malacaang Palace
There is also a legal ground why the simultaneous vacant positions of Sandiganbayan Associate Manila
Justice should not each be assigned a specific number by the JBC. The Sandiganbayan Associate
Justice positions were created without any distinction as to rank in seniority or order of preference in Your Excellency:
the collegiate court. The President appoints his choice nominee to the post of Sandiganbayan
Associate Justice, but not to a Sandiganbayan Associate Justice position with an identified rank, chanRoblesvirtualLawlibraryPursuant to Section 9, Article VIII of the Constitution, the Judicial and
which is automatically determined by the order of issuance of appointment by the President. The Bar Council has the honor to submit nominations for two (2) positions of Associate Justice of the
appointment does not specifically pertain to the 16 th, 17th, 18th, 19th, 20th, or 21st Sandiganbayan Supreme Court (vice Hon. Leonardo A. Quisumbing and Hon. Minita V. Chico-Nazario), per the JBC
Associate Justice, because the Sandiganbayan Associate Justice's ranking is temporary and Minutes of even date, to wit:ChanRoblesVirtualawlibrary
changes every time a vacancy occurs in said collegiate court. In fact, by the end of 2016, there will
be two more vacancies for Sandiganbayan Associate Justice. 51 These vacancies will surely cause 1. Abdulwahid, Hakim S. - 6 votes
movement in the ranking within the Sandiganbayan. At the time of his/her appointment, a
Sandiganbayan Associate Justice might be ranked 16 th, but because of the two vacancies occurring
in the court, the same Sandiganbayan Associate Justice may eventually be higher ranked. 2. Mendoza, Jose C. - 6 votes

3. Perez, Jose P. - 5 votes
4. Villaruz, Francisco, Jr. H. - 5 votes
5. De Leon, Magdangal M. - 4 votes
6. Tijam, Noel G. - 4 votes
Their respective curriculum vitae are hereto attached.
And, as mentioned by the OSG, the JBC, during the Chairmanship of Supreme Court Chief Justice
Renato C. Corona, submitted to President Aquino on June 21, 2011 just one list of nominees for two
vacant positions of Supreme Court Associate Justice, from which President Aquino eventually
appointed Associate Justices Bienvenido L. Reyes and Estela M. Perlas-Bernabe. Such list is fully
quoted hereunder:
June 21, 2011
His Excellency
President Benigno Simeon C. Aquino III
Malacaang Palace
Manila
Your Excellency:
chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the Constitution, the Judicial and
Bar Council has the honor to submit nominations for the two (2) positions of ASSOCIATE JUSTICE
of the SUPREME COURT, per the JBC Minutes of even date, as
follows:ChanRoblesVirtualawlibrary
1. Reyes, Jose, Jr. C. - 7 votes
2. Robles, Rodolfo D. - 7 votes
3. De Leon, Magdangal M. - 6 votes
4. Reyes, Bienvenido L. - 6 votes
5. Bernabe, Estela Perlas - 5 votes
6. Dimaampao, Japar B. - 5 votes
Their respective curriculum vitae are hereto attached.
There is no explanation for the shift in practice by the JBC, which impaired the power of the
President to appoint under the 1987 Constitution and his statutory authority to determine seniority in
a collegiate court. The clustering by the JBC of the qualified nominees for the six vacancies for
Sandiganbayan Associate Justice appears to have been done arbitrarily, there being no clear basis,
standards, or guidelines for the same. The number of nominees was not even equally distributed
among the clusters.
In view of the foregoing, President Aquino validly exercised his discretionary power to appoint
members of the Judiciary when he disregarded the clustering of nominees into six separate
shortlists for the vacancies for the 16th, 17th, 18th, 19th, 20th and 21st Sandiganbayan Associate
Justices. President Aquino merely maintained the well-established practice, consistent with the
paramount Presidential constitutional prerogative, to appoint the six new Sandiganbayan Associate
Justices from the 37 qualified nominees, as if embodied in one JBC list. This does not violate Article
VIII, Section 9 of the 1987 Constitution which requires the President to appoint from a list of at least
three nominees submitted by the JBC for every vacancy. To meet the minimum requirement under
said constitutional provision of three nominees per vacancy, there should at least be 18 nominees
from the JBC for the six vacancies for Sandiganbayan Associate Justice; but the minimum
requirement was even exceeded herein because the JBC submitted for the President's
consideration a total of 37 qualified nominees. All the six newly appointed Sandiganbayan Associate
Justices met the requirement of nomination by the JBC under Article VIII, Section 9 of the 1987
Constitution. Hence, the appointments of respondents Musngi and Econg, as well as the other four
new Sandiganbayan Associate Justices, are valid and do not suffer from any constitutional infirmity.
The ruling of the Court in this case shall similarly apply to the situation wherein there are closely
successive vacancies in a collegiate court, to which the President shall make appointments on the
same occasion, regardless of whether the JBC carried out combined or separate application
process/es for the vacancies. The President is not bound by the clustering of nominees by the JBC
and may consider as one the separate shortlists of nominees concurrently submitted by the JBC. As
the Court already ratiocinated herein, the requirements and qualifications, as well as the power,
duties, and responsibilities are the same for all the vacant posts in a collegiate court; and if an
individual is found to be qualified for one vacancy, then he/she is also qualified for all the other
vacancies. It is worthy of note that the JBC, in previous instances of closely successive vacancies in
collegiate courts, such as the Court of Appeals and the Supreme Court, faithfully observed the
practice of submitting only a single list of nominees for all the available vacancies, with at least three
nominees for every vacancy, from which the President made his appointments on the same
occasion. This is in keeping with the constitutional provisions on the President's exclusive power to
appoint members of the Judiciary and the mandate of the JBC to recommend qualified nominees for
appointment to the Judiciary.
The Court denies the Motion for Intervention of the JBC in this Petition.
In its Motion for Intervention, the JBC echoes the arguments of the OSG in the latter's Comment that
the dispute is between the JBC and the OP and it cannot be decided by the Court since the JBC is
not a party, much less, a complaining party in this case. The JBC asserts that it has legal interest in
the matter of litigation because it will be adversely affected by the judgment or decision in the
present case, having submitted the controverted shortlists of nominees to the OP. The JBC likewise
claims that its intervention will not unduly delay or prejudice the adjudication of the rights of the
original parties in the case. The JBC, thus, prays that it be allowed to intervene in the instant case
and to submit its complaint-in-intervention within 30 days from receipt of notice allowing its
intervention.
Intervening in a case is not a matter of right but of sound discretion of the Court. 53 The allowance or
disallowance of a motion for intervention rests on the sound discretion of the court after
consideration of the appropriate circumstances. It is not an absolute right. The statutory rules or
conditions for the right of intervention must be shown. The procedure to secure the right to intervene
is to a great extent fixed by the statute or rule, and intervention can, as a rule, be secured only in
accordance with the terms of the applicable provision. 54chanrobleslaw
It bears to point out that petitioners did not name the JBC as a respondent in this case because
petitioners precisely wanted the shortlists submitted by the JBC upheld; they were on the same side.
Petitioners already presented the arguments for the constitutionality of and strict adherence by the
President to the separate shortlists submitted by the JBC for the six simultaneous vacancies for
Sandiganbayan Associate Justice. Significantly, not one of the parties moved, and not even the
Court motu proprio ordered, to implead the JBC as an indispensable party herein.
The JBC avers in its Motion for Intervention that it has a legal interest in the Petition at bar and its
intervention will not unduly delay or prejudice the adjudication of the rights of the original parties in
the case.
The Court is unconvinced.
The instant Petition was filed before this Court on May 17, 2016, yet, the JBC filed its Motion for
Intervention only on November 26, 2016, more than six months later, and even praying for an
additional 30-day period from notice to submit its complaint-in-intervention. Therefore, allowing the
intervention will undoubtedly delay the resolution of the case; and further delay in the resolution of
this case will only perpetuate the doubts on the legitimacy of the appointments of respondents
Musngi and Econg as Sandiganbayan Associate Justices, to the detriment of said court, in
particular, and the entire justice system, in general. What is more, unless promptly resolved by the
Court, the instant case is capable of repetition given the forthcoming vacancies in collegiate courts,
particularly, the Supreme Court.
Even if the intervention of the JBC will evidently cause delay in the resolution of this case and
prejudice to the original parties herein, are there compelling substantive grounds to still allow the
intervention of the JBC? The JBC, through its own fault, did not provide the Court with a way to
make such a determination. The Revised Rules of Court explicitly requires that the pleading-in-
intervention already be attached to the motion for intervention.55 The JBC could have already
argued the merits of its case in its complaint-in-intervention. However, the JBC not only failed to
attach its complaint-in-intervention to its Motion for Intervention, but it also did not provide any
explanation for such failure.
The Court can reasonably assume, as well, that the JBC is well-aware of President Aquino's
appointment of the six Sandiganbayan Associate Justices, including respondents Musngi and
Econg, on January 20, 2015. The six newly-appointed Sandiganbayan Associate Justices all took
their oaths of office on January 25, 2016 at the Supreme Court Dignitaries Lounge. Respondent
Econg, with Justices Mendoza-Arcega and Trespeses, took their oaths of office before Chief Justice
Sereno, who is also the Chairperson of the JBC; while respondent Musngi, with Justices R. Cruz
and Miranda, took their oaths of office before Supreme Court Associate Justice Jardeleza on the
same occasion and at the same venue. Despite its knowledge of the appointment and assumption
of office of respondents Musngi and Econg in January 2016, the JBC did not take any action to
challenge the same on the ground that President Aquino appointed respondents Musngi and Econg
in disregard of the clustering of nominees by the JBC through the separate shortlists for the six
vacancies for Sandiganbayan Associate Justice. The silence of the JBC all this while, for a period of
eleven (11) months, can already be deemed as acquiescence to President Aquino's appointment of
respondents Musngi and Econg.
For the foregoing reasons, the Court denies the Motion for Intervention of the JBC.
There are several other new rules and practices adopted by the JBC which the Court takes
cognizance of as a separate administrative matter.
The Court takes cognizance of several other matters covered by the new rules and practices
adopted by the JBC.
Item No. 1: The Court takes judicial notice of the fact that the JBC promulgated on September 20,
2016 JBC No. 2016-1, "The Revised Rules of the Judicial and Bar Council" (Revised JBC Rules), to
take effect on October 24, 2016. Notably, the Revised JBC Rules explicitly states among its
Whereas clauses:ChanRoblesVirtualawlibrary
WHEREAS, the President of the Philippines may appoint only one from the list of at least three
nominees for every vacancy officially transmitted by the Council to the Office of the President[.]
This is an obvious attempt by the JBC to institutionalize through the Revised JBC Rules its newly-
introduced practice of clustering nominees for simultaneous vacancies in collegiate courts. The
timing likewise is disturbing as the instant case is pending resolution by this Court and with existing
and upcoming vacancies in several collegiate courts, i.e., the Sandiganbayan, the Court of Appeals,
and even this Court. As the Court has categorically declared herein, the clustering by the JBC of
nominees for simultaneous vacancies in collegiate courts constitute undue limitation on and
impairment of the power of the President to appoint members of the Judiciary under the 1987
Constitution. It also deprives qualified nominees equal opportunity to be considered for all
vacancies, not just a specific one. Incorporating such Whereas clause into the Revised JBC Rules
will not serve to legitimize an unconstitutional and unfair practice. Accordingly, such Whereas clause
shall not bind the President pursuant to the pronouncements of the Court in the present Petition.
Item No. 2: The same Revised JBC Rules deleted a significant part of JBC-009, the former JBC
Rules, specifically, Rule 8, Section 1, which provided:ChanRoblesVirtualawlibrary
Sec. 1. Due weight and regard to the recommendees of the Supreme Court. - In every case
involving an appointment to a seat in the Supreme Court, the Council shall give due weight and
regard to the recommendees of the Supreme Court. For this purpose, the Council shall submit to the
Court a list of candidates for any vacancy in the Court with an executive summary of its evaluation
and assessment of each of them, together with all relevant records concerning the candidates from
whom the Court may base the selection of its recommendees.
The deletion of this provision will likewise institutionalize the elimination by Chief Justice Sereno of
the voting by the Supreme Court Justices on who among the applicants to the Supreme Court they
believe are most deserving.
Through Rule 8, Section 1 of JBC-009, the JBC had accorded through the years due weight and
regard to the recommendees of the Supreme Court for the vacancies in said Court. The JBC had
consistently complied with said rule and furnished the Court in prior years with the list of candidates
for vacancies in the Court, together with an executive summary of the evaluation and assessment of
each candidate by the JBC and all relevant documents concerning the candidates, for the
incumbent Justices' consideration, but stopped doing so ever since Chief Justice Sereno became
the Chairperson of the JBC. Although the JBC was not bound by the list of recommendees of the
Court, the JBC at least took the list under advisement. The deletion of the foregoing provision from
the Revised JBC Rules formally institutionalizes Chief Justice Sereno's unilateral decision to
abandon a well-established rule, procedure, and practice observed by the Court, and completely
precludes the incumbent Supreme Court Justices from expressing their views on the qualifications
of the applicants to the vacancies in the Supreme Court.
The Court calls attention to the fact that the JBC, in JBC-009 and the Revised JBC Rules, invites the
public to give any comment or opposition against the applicants to the Judiciary.
According to Rule 1, Section 9 of JBC-009:ChanRoblesVirtualawlibrary
Sec. 9. Publication of list of applicants. The list of applicants or recommendees which the Council
shall consider in a given time shall be published once in a newspaper of general circulation in the
Philippines and once in a newspaper of local circulation in the province or city where the vacancy is
located. The publication shall invite the public to inform the Council within the period fixed
therein of any complaint or derogatory information against the applicant. x x x (Emphasis
supplied.)
A similar provision can be found in the Revised JBC Rules as Rule 1, Section
8:ChanRoblesVirtualawlibrary
Sec. 8. Publication of List of Applicants. The list of applicants who meet the minimum qualifications
and the Council's evaluative criteria prescribed in Sections 2 and 3 of Rule 3 of these Rules, which
the Council shall consider in a given time, shall be published once in two newspapers of general
circulation in the Philippines.
The publication shall inform the public that any complaint or opposition against applicants
may be filed with the secretariat of the Council. A copy of the list shall likewise be posted in the
JBC website. (Emphasis supplied.)
Yet, Chief Justice Sereno, without consulting the Court en banc, has done away with the settled
practice of seeking the views of the incumbent Justices on the applicants to the vacant positions in
the Supreme Court.
To recall, Chief Justice Sereno had previously disregarded Rule 8, Section 1 of JBC-009, during the
nomination process for the vacancy of Supreme Court Associate Justice following the retirement of
Associate Justice Roberto A. Abad on May 22, 2014. As Associate Justice Arturo D. Brion narrated
in his Separate Concurring Opinion in the Jardeleza Decision 56:ChanRoblesVirtualawlibrary
[Of particular note in this regard is this Court's own experience when it failed to vote for its
recornmendees for the position vacated by retired Associate Justice Roberto A. Abad, because of a
letter dated May 29, 2014 from the Chief Justice representing to the Court that "several Justices"
requested that the Court do away with the voting for Court recornmendees, as provided in Section 1,
Rule 8 of JBC-009. When subsequently confronted on who these Justices were, the Chief Justice
failed to name anyone. As a result, applicants who could have been recommended by the Court
(Jardeleza, among them), missed their chance to be nominees.] 57chanroblesvirtuallawlibrary
The Supreme Court Justices were also not given the opportunity to know the applicants to the
succeeding vacant position in the Court (to which Associate Justice Alfredo Benjamin S. Caguioa
was eventually appointed) as Rule 8, Section 1 of JBC-009 was again not followed.
Item No. 3: The JBC currently has no incumbent Supreme Court Associate Justice as consultant.
By practice, since the creation of the JBC, the two (2) most senior Supreme Court Associate
Justices had acted as consultants of the JBC. From 1987 until 2016, the following Associate
Justices of this Court, during their incumbency, served as JBC
consultants:ChanRoblesVirtualawlibrary
Supreme Court Associate Justices as JBC
Period
Consultants
Pedro L. Yap+ December 10, 1987 to April 13, 1988
Marcelo B. Fernan+ January 5, 1988 to June 29, 1988
Andres R. Narvasa May 6, 1988 to December 5, 1991
Leo M. Medialdea+ July 21, 1988 to November 4, 1992
Ameurfina M. Herrera January 16, 1992 to March 30, 1992
December 21, 1993 to November 13,
Josue N. Bellosillo
2003
Jose C. Vitug November 20, 2003 to July 14, 2004
Artemio V. Panganiban July 21, 2004 to December 19, 2005
Leonardo A. Quisumbing January 1, 2006 to November 5, 2009
Consuelo Y. Santiago December 11, 2006 to October 4, 2009
Renato C. Corona November 6, 2009 to May 16, 2010
Antonio T. Carpio October 5, 2009 to May 16, 2010
September 10, 2012 to January 28,
2014
Presbiterio J. Velasco, Jr. June 4, 2012 to August 23, 2012
September 10, 2012 to [August 2016]
Teresita J. Leonardo-De Castro June 4, 2012 to August 23, 2012
[February 1, 2014] to [August 2016]58
Without notice, warning, or explanation to the Supreme Court En Banc, Chief Justice Sereno
recently unceremoniously relieved Supreme Court Associate Justices Presbiterio J. Velasco, Jr. and
Teresita J. Leonardo De Castro as JBC consultants, and in their stead, the Chief Justice appointed
retired Chief Justices Hilario G. Davide, Jr., Artemio V. Panganiban, and Reynato S. Puno as JBC
consultants. The experience and wisdom of the three retired Chief Justices are undisputed.
However, practicality and prudence also dictate that incumbent Associate Justices of the Court
should be retained as JBC consultants since their interest in the Judiciary is real, actual, and direct.
Incumbent Associate Justices of the Court are aware of the present state, needs, and concerns of
the Judiciary, and consultants from the Court, even if they have no right to vote, have served, from
the organization of the JBC, as the only link to the supervisory authority of the Court over the JBC
under the 1987 Constitution. Moreover, Hon. Angelina Sandoval-Gutierrez already sits as a regular
member of the JBC representing the Retired Supreme Court Justices, pursuant to Article VIII,
Section 8(1) of the 1987 Constitution, which expressly describes the composition of the JBC, as
follows:ChanRoblesVirtualawlibrary
Sec. 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as Chairman, the Secretary of Justice, and a representative of the
Congress as Members, a representative of the Integrated Bar, a professor of law, a retired Member
of the Supreme Court, and a representative of the private sector. (Emphasis supplied.)
These changes in settled rules and practices recently adopted by the JBC under Chief Justice
Sereno are disconcerting. There appears to be a systematic move by the JBC, under Chief Justice
Sereno to arrogate to itself more power and influence than it is actually granted by the Constitution
and this Court, and at the same time, to ease out the Court from any legitimate participation in the
nomination process for vacancies in the Judiciary, specifically, in the Supreme Court. This behooves
the Court, through the exercise of its power of supervision over the JBC, to take a closer look into
the new rules and practices of the JBC and ensure that these are in accord with the 1987
Constitution, the pertinent laws, and the governmental policies of transparency and accountability in
the nomination process for vacancies in the Judiciary.
Article VIII, Section 8 of the 1987 Constitution gives the JBC the principal function of "recommending
appointees to the Judiciary," but it also explicitly states that the JBC shall be "under the supervision
of the Court" and that "[i]t may exercise such other functions and duties as the Supreme Court may
assign to it."
Book IV, Chapter 7, Section 38(2) of Executive Order No. 292, otherwise known as The
Administrative Code of the Philippines, defines supervision as follows:ChanRoblesVirtualawlibrary
Sec. 38. Definition of Administrative Relationship. - Unless otherwise expressly stated in the Code
or in other laws defining the special relationships of particular agencies, administrative relationships
shall be categorized and defmed as follows:
chanRoblesvirtualLawlibraryx x x x
(2) Administrative Supervision. - (a) Administrative supervlSlon which shall govern the administrative
relationship between a department or its equivalent and regulatory agencies or other agencies as
may be provided by law, shall be limited to the authority of the department or its equivalent to
generally oversee the operations of such agencies and to insure that they are managed effectively,
efficiently and economically but without interference with day-to-day activities; or require the
submission of reports and cause the conduct of management audit, performance evaluation and
inspection to determine compliance with policies, standards and guidelines of the department; to
take such action as may be necessary for the proper performance of official functions, including
rectification of violations, abuses and other forms of maladministration; and to review and pass upon
budget proposals of such agencies but may not increase or add to them;
(b) Such authority shall not, however, extend to: (1) appointments and other personnel actions in
accordance with the decentralization of personnel functions under the Code, except when appeal is
made from an action of the appointing authority, in which case the appeal shall be initially sent to the
department or its equivalent, subject to appeal in accordance with law; (2) contracts entered into by
the agency in the pursuit of its objectives, the review of which and other procedures related thereto
shall be governed by appropriate laws, rules and regulations; and (3) the power to review, reverse,
revise, or modify the decisions of regulatory agencies in the exercise of their regulatory or quasi-
judicial functions; and cralawlawlibrary
(c) Unless a different meaning is explicitly provided in the specific law governing the relationship of
particular agencies, the word "supervision" shall encompass administrative supervision as defined in
this paragraph.
The Court also provided the following definition of supervision in the Jardeleza
Decision59:ChanRoblesVirtualawlibrary
As a meaningful guidepost, 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. (Citation omitted.)
"Supervision" is differentiated from "control," thus:ChanRoblesVirtualawlibrary
Supervisory power, when contrasted with control, is the power of mere oversight over an inferior
body; it does not include any restraining authority over such body. Officers in control lay down the
rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act
undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not
cover such authority. Supervising officers merely sees to it that the rules are followed, but he himself
does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules
are not observed, he may order the work done or re-done to conform to the prescribed rules. He
cannot prescribe his own manner for the doing of the act. 60 (Citations omitted.)
The Court had recognized that "[s]upervision is not a meaningless thing. It is an active power. It is
certainly not without limitation, but it at least implies authority to inquire into facts and conditions in
order to render the power real and effective." 61chanrobleslaw
In the exercise of its power of supervision over the JBC, the Court shall take up the aforementioned
Item Nos. 2 and 3 as a separate administrative matter and direct the JBC to file its comment on the
same.
WHEREFORE, premises considered, the Court DISMISSES the instant Petition for Quo
Warranto and Certiorari and Prohibition for lack of merit. The Court DECLARES the clustering of
nominees by the Judicial and Bar Council UNCONSTITUTIONAL, and the appointments of
respondents Associate Justices Michael Frederick L. Musngi and Geraldine Faith A. Econg,
together with the four other newly-appointed Associate Justices of the Sandiganbayan, as VALID.
The Court further DENIES the Motion for Intervention of the Judicial and Bar Council in the present
Petition, but ORDERS the Clerk of Court En Banc to docket as a separate administrative matter the
new rules and practices of the Judicial and Bar Council which the Court took cognizance of in the
preceding discussion as Item No.2: the deletion or non-inclusion in JBC No. 2016-1, or the Revised
Rules of the Judicial and Bar Council, of Rule 8, Section 1 of JBC-009; and Item No. 3: the removal
of incumbent Senior Associate Justices of the Supreme Court as consultants of the Judicial and Bar
Council, referred to in pages 35 to 40 of this Decision. The Court finally DIRECTS the Judicial and
Bar Council to file its comment on said Item Nos. 2 and 3 within thirty (30) days from notice.
SO ORDERED.chanroblesvirtuallawlibrary
G.R. No. 224302 FEBRUARY 2017
HON. PHILIP A. AGUINALDO, HON. REYNALDO A. ALHAMBRA, HON. DANILO S. CRUZ, HON.
BENJAMIN T. POZON, HON. SALVADOR V. TIMBANG, JR., and the INTEGRATED BAR OF
THE PHILIPPINES (IBP),Petitioners
vs.
HIS EXCELLENCY PRESIDENT BENIGNO SIMEON C. AQUINO III, HON. EXECUTIVE
SECRETARY PAQUITO N. OCHOA, HON. MICHAEL FREDERICK L. MUSNGI, HON. MA.
GERALDINE FAITH A. ECONG, HON. DANILO S. SANDOVAL, HON. WILHELMINA B. JORGE-
WAGAN, HON. ROSANA FE ROMERO-MAGLAYA, HON. MERIANTHE PACITA M. ZURAEK,
HON. ELMO M. ALAMEDA, and HON. VICTORIA C. FERNANDEZ-BERNARDO, Respondents
RESOLUTION
LEONARDO-DE CASTRO, J.:
In its Decision dated November 29, 2016, the Court En Banc held:
WHEREFORE, premises considered, the Court DISMISSES the instant Petition for Quo
Warranto and Certiorari and Prohibition for lack of merit. The Court DECLARES the clustering of
nominees by the Judicial and Bar Council UNCONSTITUTIONAL, and the appointments of
respondents Associate Justices Michael Frederick L. Musngi and Geraldine Faith A. Econg,
together with the four other newly-appointed Associate Justices of the Sandiganbayan, as VALID.
The Court further DENIES the Motion for Intervention of the Judicial and Bar Council in the present
Petition, but ORDERS the Clerk of Court En Banc to docket as a separate administrative matter the
new rules and practices of the Judicial and Bar Council which the Court took cognizance of in the
preceding discussion as Item No. 2: the deletion or non-inclusion in JBC No. 2016-1, or the Revised
Rules of the Judicial and Bar Council, of Rule 8, Section 1 of JBC-009; and Item No. 3: the removal
of incumbent Senior Associate Justices of the Supreme Court as consultants of the Judicial and Bar
Council, referred to in pages 3 5 to 40 of this Decision. The Court finally DIRECTS the Judicial and
Bar Council to file its comment on said Item Nos. 2 and 3 within thirty (30) days from notice.1
I
THE JBC MOTIONS
The Judicial and Bar Council (JBC) successively filed a Motion for Reconsideration (with Motion for
the Inhibition of the Ponente) on December 27, 2016 and a Motion for Reconsideration-in-
Intervention (Of the Decision dated 29 November 2016) on February 6, 2017.
At the outset, the Court notes the revelation of the JBC in its Motion for Reconsideration-in-
Intervention that it is not taking any position in this particular case on President Aquino's
appointments to the six newly-created positions of Sandiganbayan Associate Justice. The Court
quotes the relevant portions from the Motion, as follows:
The immediate concern of the JBC is this Court's pronouncement that the former's act of
submitting six lists for six vacancies was unconstitutional. Whether the President can cross-
reach into the lists is not the primary concern of the JBC in this particular case. At another
time, perhaps, it may take a position. But not in this particular situation involving the newly
created positions in the Sandiganbayan in view of the lack of agreement by the JBC
Members on that issue.
What the President did with the lists, for the purpose of this particular dispute alone as far as
the JBC is concerned, was the President's exclusive domain. 2
Nonetheless, the JBC did not categorically withdraw the arguments raised in its previous Motions,
and even reiterated and further discussed said arguments, and raised additional points in its Motion
for Reconsideration-in-Intervention. Hence, the Court is still constrained to address said arguments
in this Resolution.
In its Motion for Reconsideration (with Motion for Inhibition of the Ponente) the JBC argues as
follows: (a) Its Motion for Intervention was timely filed on November 26, 2016, three days before the
promulgation of the Decision in the instant case; (b) The JBC has a legal interest in this case, and
its intervention would not have unduly delayed or prejudiced the adjudication of the rights of the
original parties; (c) Even assuming that the Motion for Intervention suffers procedural infirmities, said
Motion should have been granted for a complete resolution of the case and to afford the JBC due
process; and (d) Unless its Motion for Intervention is granted by the Court, the JBC is not bound by
the questioned Decision because the JBC was neither a party litigant nor impleaded as a party in
the case, the JBC was deprived of due process, the assailed Decision is a judgment in
personam and not a judgment in rem, and a decision rendered in violation of a party's right to due
process is void for lack of jurisdiction.
On the merits of the case, the JBC asserts that in submitting six short lists for six vacancies, it was
only acting in accordance with the clear and unambiguous mandate of Article VIII, Section 9 3 of the
1987 Constitution for the JBC to submit a list for every vacancy. Considering its independence as a
constitutional body, the JBC has the discretion and wisdom to perform its mandate in any manner as
long as it is consistent with the Constitution. According to the JBC, its new practice of "clustering," in
fact, is more in accord with the purpose of the JBC to rid the appointment process to the Judiciary
from political pressure as the President has to choose only from the nominees for one particular
vacancy. Otherwise, the President can choose whom he pleases, and thereby completely disregard
the purpose for the creation of the JBC. The JBC clarifies that it numbered the vacancies, not to
influence the order of precedence, but for practical reasons, i.e., to distinguish one list from the
others and to avoid confusion. The JBC also points out that the acts invoked against the JBC are
based on practice or custom, but "practice, no matter how long continued, cannot give rise to any
vested right." The JBC, as a constitutional body, enjoys independence, and as such, it may change
its practice from time to time in accordance with its wisdom.
Lastly, the JBC moves for the inhibition of the ponente of the assailed Decision based on Canon 3,
Section 5 of the New Code of Judicial Conduct for Philippine Judiciary. 4 The JBC alleges that
the ponente, as consultant of the JBC from 2014 to 2016, had personal knowledge of the voting
procedures and format of the short lists, which are the subject matters of this case.
The ponente was even present as consultant during the meeting on October 26, 2015 when the JBC
voted upon the candidates for the six new positions of Associate Justice of the Sandiganbayan
created under Republic Act No. 10660. The JBC then expresses its puzzlement over the ponente
's participation in the present proceedings, espousing a position contrary to that of the JBC. The
JBC questions why it was only in her Decision in the instant case did the ponente raise her
disagreement with the JBC as to the clustering of nominees for each of the six simultaneous
vacancies for Sandiganbayan Associate Justice. The JBC further quoted portions of the assailed
Decision that it claims bespoke of the ponente 's "already-arrived-at" conclusion as to the alleged ill
acts and intentions of the JBC. Hence, the JBC submits that such formed inference will not lend to
an even-handed consideration by the ponente should she continue to participate in the case.
Ultimately, the JBC prays:
IN VIEW OF THE FOREGOING, it is respectfully prayed that the DECISION dated 29 November
2016 be reconsidered and set aside and a new one be issued granting the Motion for Intervention of
the JBC.
It is likewise prayed that the ponente inhibit herself from further participating in this case and that the
JBC be granted such other reliefs as are just and equitable under the premises. 5
The JBC subsequently filed a Motion for Reconsideration-in-Intervention (Of the Decision dated 29
November 2016), praying at the very beginning that it be deemed as sufficient remedy for the
technical deficiency of its Motion for Intervention (i.e., failure to attach the pleading-in-intervention)
and as Supplemental Motion for Reconsideration of the denial of its Motion for Intervention.
The JBC, in its latest Motion, insists on its legal interest, injury, and standing to intervene in the
present case, as well as on the timeliness of its Motion for Intervention.
The JBC proffers several reasons for not immediately seeking to intervene in the instant case
despite admitting that it received copies of the appointments of the six Sandiganbayan Associate
Justices from the Office of the President (OP) on January 25, 2016, to wit: (a) Even as its individual
Members harbored doubts as to the validity of the appointments of respondents Michael Frederick
L. Musngi (Musngi) and Geraldine Faith A. Econg (Econg) as Sandiganbayan Associate Justices,
the JBC agreed as a body in an executive session that it would stay neutral and not take any legal
position on the constitutionality of said appointments since it "did not have any legal interest in the
offices of Associate Justices of the Sandiganbayan"; (b) None of the parties prayed that the act of
clustering by the JBC be declared unconstitutional; and (c) The JBC believed that the Court would
apply the doctrine of presumption of regularity in the discharge by the JBC of its official functions
and if the Court would have been inclined to delve into the validity of the act of clustering by the
JBC, it would order the JBC to comment on the matter.
The JBC impugns the significance accorded by the ponente to the fact that Chief Justice Maria
Lourdes P. A. Sereno (Sereno), Chairperson of the JBC, administered the oath of office of
respondent Econg as Sandiganbayan Associate Justice on January 25, 2016. Chief Justice
Serena's act should not be taken against the JBC because, the JBC reasons, Chief Justice Sereno
only chairs the JBC, but she is not the JBC, and the administration of the oath of office was a purely
ministerial act.
The JBC likewise disputes the ponente 's observation that clustering is a totally new practice of the
JBC. The JBC avers that even before Chief Justice Sereno's Chairmanship, the JBC has generally
followed the rule of one short list for every vacancy in all first and second level trial courts. The JBC
has followed the "one list for every vacancy" rule even for appellate courts since 2013. The JBC
even recalls that it submitted on August 17, 2015 to then President Benigno Simeon C. Aquino III
(Aquino) four separate short lists for four vacancies in the Court of Appeals; and present during the
JBC deliberations were the ponente and Supreme Court Associate Justice Presbitero J. Velasco, Jr.
(Velasco) as consultants, who neither made any comment on the preparation of the short lists.
On the merits of the Petition, the JBC maintains that it did not exceed its authority and, in fact, it only
faithfully complied with the literal language of Article VIII, Section 9 of the 1987 Constitution, when it
prepared six short lists for the six vacancies in the Sandiganbayan. It cites the cases of Atong
Paglaum, Inc. v. Commission on Elections6and Ocampo v. Enriquez,7 wherein the Court allegedly
adopted the textualist approach of constitutional interpretation.
The JBC renounces any duty to increase the chances of appointment of every candidate it adjudged
to have met the minimum qualifications. It asserts that while there might have been favorable
experiences with the past practice of submitting long consolidated short lists, past practices cannot
be used as a source of rights and obligations to override the duty of the JBC to observe a
straightforward application of the Constitution.
The JBC posits that clustering is a matter of legal and operational necessity for the JBC and the only
safe standard operating procedure for making short lists. It presents different scenarios which
demonstrate the need for clustering, viz., (a) There are two different sets of applicants for the
vacancies; (b) There is a change in the JBC composition during the interval in the deliberations on
the vacancies as the House of Representatives and the Senate alternately occupy the ex officio seat
for the Legislature; (c) The applicant informs the JBC of his/her preference for assignment in the
Cebu Station or Cagayan de Oro Station of the Court of Appeals because of the location or the
desire to avoid mingling with certain personalities; (d) The multiple vacancies in newly-opened first
and second level trial courts; and (e) The dockets to be inherited in the appellate court are
overwhelming so the JBC chooses nominees for those particular posts with more years of service
as against those near retirement.
To the JBC, it seems that the Court was in a hurry to promulgate its Decision on November 29,
2016, which struck down the practice of clustering by the JBC. The JBC supposes that it was in
anticipation of the vacancies in the Court as a result of the retirements of Supreme Court Associate
Justices Jose P. Perez (Perez) and Arturo D. Brion (Brion) on December 14, 2016 and December
29, 2016, respectively. The JBC then claims that it had no choice but to submit two separate short
lists for said vacancies in the Court because there were two sets of applicants for the
same, i.e., there were 14 applicants for the seat vacated by Justice Perez and 17 applicants for the
seat vacated by Justice Brion.
The JBC further contends that since each vacancy creates discrete and possibly unique situations,
there can be no general rule against clustering. Submitting separate, independent short lists for
each vacancy is the only way for the JBC to observe the constitutional standards of (a) one list for
every vacancy, and (b) choosing candidates of competence, independence, probity, and integrity for
every such vacancy.
It is also the asseveration of the JBC that it did not encroach on the President's power to appoint
members of the Judiciary. The JBC alleges that its individual Members gave several reasons why
there was an apparent indication of seniority assignments in the six short lists for the six vacancies
for Sandiganbayan Associate Justice, particularly: (a) The JBC can best perform its job by indicating
who are stronger candidates by giving higher priority to those in the lower-numbered list; (b) The
indication could head off the confusion encountered in Re: Seniority Among the Four Most Recent
Appointments to the Position of Associate Justices of the Court of Appeals;8 and (c) The numbering
of the lists from 16th to 21st had nothing to do with seniority in the Sandiganbayan, but was only an
ordinal designation of the cluster to which the candidates were included.
The JBC ends with a reiteration of the need for the ponente to inhibit herself from the instant case
as she appears to harbor hostility possibly arising from the termination of her JBC consultancy.
The prayer of the JBC in its Motion for Reconsideration-in-Intervention reads:
IN VIEW OF THE FOREGOING, it is respectfully prayed that JBC's Motion for Reconsideration-in-
Intervention, Motion for Intervention and Motion for Reconsideration with Motion for Inhibition of
Justice Teresita J. Leonardo-De Castro of the JBC be granted and/or given due course and that:
1. the Court's pronouncements in the Decision dated 29 November 2016 with respect to the JBC's
submission of six shortlists of nominees to the Sandiganbayan be modified to reflect that the JBC is
deemed to have followed Section 9, Article VIII of the Constitution in its practice of submitting one
shortlist of nominees for every vacancy, including in submitting on 28 October 2015 six lists to
former President Benigno Simeon C. Aquino III for the six vacancies of the Sandiganbayan, or for
the Court to be completely silent on the matter; and
2. the Court delete the treatment as a separate administrative matter of the alleged new rules and
practices of the JBC, particularly the following: (1) the deletion or non-inclusion of Rule 8, Section 1
of JBC-009 in JBC No. 2016-1, or the Revised Rules of the Judicial and Bar Council; and (2) the
removal of incumbent Senior Associate Justices of the Supreme Court as consultants of the JBC,
referred to in pages 35 to 40 of the Decision. And as a consequence, the Court excuse the JBC
from filing the required comment on the said matters. 9
II
THE RULING OF THE COURT
There is no legal or factual basis for the
ponente to inhibit herself from the instant
case.
The Motion for Inhibition of the Ponente filed by the JBC is denied.
The present Motion for Inhibition has failed to comply with Rule 8, Section 2 of the Internal Rules of
the Supreme Court,10 which requires that "[a] motion for inhibition must be in writing and under
oath and shall state the grounds therefor." Yet, even if technical rules are relaxed herein, there is
still no valid ground for the inhibition of the ponente.
There is no ground11 for the mandatory inhibition of the ponente from the case at bar.
The ponente has absolutely no personal interest in this case. The ponente is not a counsel, partner,
or member of a law firm that is or was the counsel in the case; the ponente or her spouse, parent, or
child has no pecuniary interest in the case; and the ponente is not related to any of the parties in the
case within the sixth degree of consanguinity or affinity, or to an attorney or any member of a law
firm who is counsel of record in the case within the fourth degree of consanguinity or affinity.
The ponente is also not privy to any proceeding in which the JBC discussed and decided to adopt
the unprecedented method of clustering the nominees for the six simultaneous vacancies for
Sandiganbayan Associate Justice into six separate short lists, one for every vacancy.
The ponente does not know when, how, and why the JBC adopted the clustering method of
nomination for appellate courts and even the Supreme Court.
With due respect to Chief Justice Sereno, it appears that when the JBC would deliberate on highly
contentious, sensitive, and important issues, it was her policy as Chairperson of the JBC to hold
executive sessions, which excluded the Supreme Court consultants. At the JBC meeting held on
October 26, 2015, Chief Justice Sereno immediately mentioned at the beginning of the deliberations
"that, as the Council had always done in the past when there are multiple vacancies, the voting
would be on a per vacancy basis."12 Chief Justice Sereno went on to state that the manner of voting
had already been explained to the two ex officio members of the JBC who were not present during
the meeting, namely, Senator Aquilino L. Pimentel III (Pimentel) and then Department of Justice
(DOJ) Secretary ALFREDO BENJAMIN S. Caguioa (Caguioa).13 Then the JBC immediately
proceeded with the voting of nominees. This ponente was not consulted before the JBC decision to
cluster nominees was arrived at and, therefore, she did not have the opportunity to study and submit
her recommendation to the JBC on the clustering of nominees.
It is evident that prior to the meeting on October 26, 2015, the JBC had already reached an
agreement on the procedure it would follow in voting for nominees, i.e., the clustering of the
nominees into six separate short lists, with one short list for each of the six newly-created positions
of Sandiganbayan Associate Justice. That Senator Pimentel and DOJ Secretary Caguioa, who were
not present at the meeting on October 26, 2015, were informed beforehand of the clustering of
nominees only proves that the JBC had already agreed upon the clustering of nominees prior to the
said meeting.
Notably, Chief Justice Sereno inaccurately claimed at the very start of the deliberations that the JBC
had been voting on a per vacancy basis "as the Council had always done," giving the impression
that the JBC was merely following established procedure, when in truth, the clustering of nominees
for simultaneous or closely successive vacancies in a collegiate court was a new practice only
adopted by the JBC under her Chairmanship. In the Decision dated November 29, 2016, examples
were already cited how, in previous years, the JBC submitted just one short list for simultaneous or
closely successive vacancies in collegiate courts, including the Supreme Court, which will again be
presented hereunder.
As previously mentioned, it is the practice of the JBC to hold executive sessions when taking up
sensitive matters. The ponente and Associate Justice Velasco, incumbent Justices of the Supreme
Court and then JBC consultants, as well as other JBC consultants, were excluded from such
executive sessions. Consequently, the ponente and Associate Justice Velasco were unable to
participate in and were kept in the dark on JBC proceedings/decisions, particularly, on matters
involving the nomination of candidates for vacancies in the appellate courts and the Supreme Court.
The matter of the nomination to the Supreme Court of now Supreme Court Associate Justice
FRANCIS H. Jardeleza (Jardeleza), which became the subject matter of Jardeleza v. Sereno,14 was
taken up by the JBC in such an executive session. This ponente also does not know when and why
the JBC deleted from JBC No. 2016-1, "The Revised Rules of the Judicial and Bar Council," what
was Rule 8, Section 1 of JBC-009, the former JBC Rules, which gave due weight and regard to the
recommendees of the Supreme Court for vacancies in the Court. The amendment of the JBC Rules
could have been decided upon by the JBC when the ponente and Associate Justice Velasco were
already relieved by Chief Justice Sereno of their duties as consultants of the JBC. The JBC could
have similarly taken up and decided upon the clustering of nominees for the six vacant posts of
Sandiganbayan Associate Justice during one of its executive sessions prior to October 26, 2015.
Hence, even though the ponente and the other JBC consultants were admittedly present during the
meeting on October 26, 2015, the clustering of the nominees for the six simultaneous vacancies for
Sandiganbayan Associate Justice was already fait accompli. Questions as to why and how the JBC
came to agree on the clustering of nominees were no longer on the table for discussion during the
said meeting. As the minutes of the meeting on October 26, 2015 bear out, the JBC proceedings
focused on the voting of nominees. It is stressed that the crucial issue in the present case pertains
to the clustering of nominees and not the nomination and qualifications of any of the nominees.
This ponente only had the opportunity to express her opinion on the issue of the clustering of
nominees for simultaneous and closely successive vacancies in collegiate courts in her ponencia in
the instant case. As a Member of the Supreme Court, the ponente is duty-bound to render an
opinion on a matter that has grave constitutional implications.
Neither is there any basis for the ponente 's voluntary inhibition from the case at bar. Other than the
bare allegations of the JBC, there is no clear and convincing evidence of the ponente 's purported
bias and prejudice, sufficient to overcome the presumption that she had rendered her
assailed ponencia in the regular performance of her official and sacred duty of dispensing justice
according to law and evidence and without fear or favor. Significant herein is the following
disquisition of the Court on voluntary inhibition of judges in Gochan v. Gochan,15 which is just as
applicable to Supreme Court Justices:
In a string of cases, the Supreme Court has said that bias and prejudice, to be considered
valid reasons for the voluntary inhibition of judges, must be proved with clear and
convincing evidence. Bare allegations of their partiality will not suffice. It cannot be
presumed, especially if weighed against the sacred oaths of office of magistrates, requiring
them to administer justice fairly and equitably - both to the poor and the rich, the weak and the
strong, the lonely and the well-connected. (Emphasis supplied.)
Furthermore, it appears from the admitted lack of consensus on the part of the JBC Members as to
the validity of the clustering shows that the conclusion reached by the ponente did not arise from
personal hostility but from her objective evaluation of the adverse constitutional implications of the
clustering of the nominees for the vacant posts of Sandiganbayan Associate Justice. It is
unfortunate that the JBC stooped so low in casting aspersion on the person of this ponente instead
of focusing on sound legal arguments to support its position. There is absolutely no factual basis for
the uncalled for and unfair imputation of the JBC that the ponente harbors personal hostility against
the JBC presumably due to her removal as consultant. The ponente 's removal as consultant was
the decision of Chief Justice Sereno, not the JBC. The ponente does not bear any personal grudge
or resentment against the JBC for her removal as consultant. The ponente does not view Chief
Justice Sereno's move as particularly directed against her as Associate Justice Velasco had been
similarly removed as JBC consultant. The ponente has never been influenced by personal motive in
deciding cases. The ponente, instead, perceives the removal of incumbent Supreme Court Justices
as consultants of the JBC as an affront against the Supreme Court itself as an institution, since the
evident intention of such move was to keep the Supreme Court in the dark on the changes in rules
and practices subsequently adopted by the JBC, which, to the mind of this ponente, may adversely
affect the exercise of the supervisory authority over the JBC vested upon the Supreme Court by the
Constitution.
All the basic issues raised in the Petition
had been thoroughly passed upon by the
Court in its Decision dated November 29,
2016 and the JBC already expressed its
disinterest to question President Aquino's
VACANCY IN THE
"cross-reaching" in his appointment of the
SANDIGANBAYAN
six new Sandiganbayan Associate Justices.
Even if the Motion for Reconsideration and Motion for Reconsideration-in-Intervention of the JBC,
praying for the grant of its Motion for Intervention and the reversal of the Decision16th
dated Associate
November Justice
29, 2016, are admitted into the records of this case and the issues raised and arguments adduced in
the said two Motions are considered, there is no cogent reason to reverse the Decision dated
November 29, 2016, particularly, in view of the admission of the JBC of the lack of unanimity among
17th Associate Justice
the JBC members on the issue involving the clustering of nominees for the six simultaneous
vacancies for Sandiganbayan Associate Justice and their disinterest to question the "cross-
reaching" or non-observance by President Aquino of such clustering.
Hence, the Court will no longer belabor the issue that only three JBC Members signed 18th Associate
the MotionJustice
for Intervention and Motion for Reconsideration and only four JBC Members signed the Motion for
Reconsideration-in-Intervention, as well as the fact that Chief Justice Sereno, as Chairperson of the
JBC, did not sign the three Motions.
To determine the legal personality of the signatories to file the JBC Motions, the Court has accorded
particular significance to who among the JBC Members signed the Motions and to Chief Justice
19th Associate Justice
Sereno's act of administering the oath of office to three of the newly-appointed Sandiganbayan
Associate Justices, including respondent Econg, in resolving the pending Motions of the JBC.
However, in its Motion for Reconsideration-in-Intervention, the JBC now reveals that not all of its
20th Associate
Members agree on the official position to take in the case of President Aquino's appointment Justice
of the
six new Sandiganbayan Associate Justices. Thus, the position of the JBC on the clustering of the
nominees for the six simultaneous vacancies for Sandiganbayan Associate Justice rests on shaky
legal ground.
The JBC takes exception as to why the Court allowed the Petition at bar even when 21stit Associate
did not strictly
Justice
comply with the rules, as it was filed beyond the 60-day period for filing a petition for certiorari. The
Court, in its Decision dated November 29, 2016, gave consideration to petitioners' assertion that
they had to secure first official copies of the six short lists before they were able to confirm that
President Aquino, in appointing the six new Sandiganbayan Associate Justices, actually disregarded
the clustering of nominees into six separate short lists. While the Court is hard-pressed to extend
the same consideration to the JBC which made no immediate effort to explain its failure to timely
question or challenge the appointments of respondents Econg and Musngi as Sandiganbayan
Associate Justices whether before the OP or the courts, the Court will nevertheless now allow the
JBC intervention by considering the issues raised and arguments adduced in the Motion for
Reconsideration and Motion for Reconsideration-in-Intervention of the JBC in the interest of
substantial justice.
Incidentally, it should be mentioned that the JBC reproaches the Court for supposedly hurrying the
promulgation of its Decision on November 29, 2016 in anticipation of the impending vacancies in the
Supreme Court due to the retirements of Associate Justices Perez and Brion in December 2016. On
the contrary, it appears that it was the JBC which hurriedly proceeded with the two separate
publications on August 4, 2016 and August 18, 2016 of the opening of the application for the
aforesaid vacancies, respectively, which was contrary to previous practice, even while the issue of
clustering was set to be decided by the Court. Moreover, a scrutiny of the process the Petition went
through before its promulgation negates any haste on the part of the Court. Bear in mind that the
Petition at bar was filed on May 1 7, 2016 and petitioners' Reply, the last pleading allowed by the
Court in this case, was filed on August 3, 2016. The draftponencia was calendared in the agenda of
the Supreme Court en bane, called again, and deliberated upon several times before it was actually
voted upon on November 29, 2016. Indeed, it appears that it was the JBC which rushed to release
the separate short lists of nominees for the said Supreme Court vacancies despite knowing the
pendency of the instant Petition and its own filing of a Motion for Intervention herein on November
28, 2016. The JBC went ahead with the release of separate short lists of nominees for the posts of
Supreme Court Associate Justice vice retired Associate Justices Perez and Brion on December 2,
2016 and December 9, 2016, respectively.
Even if the Court allows the intervention of the JBC, as it will now do in the case at bar, the
arguments of the JBC on the merits of the case fail to persuade the Court to reconsider its Decision
dated November 29, 2016.
a. The clustering of nominees for the
six vacancies in the Sandiganbayan
by the JBC impaired the President's
power to appoint members of the
Judiciary and to determine the
seniority of the newly-appointed
Sandiganbayan Associate Justices.
Noteworthy is the fact that the Court unanimously voted that in this case of six simultaneous
vacancies for Sandiganbayan Associate Justice, the JBC acted beyond its constitutional mandate in
clustering the nominees into six separate short lists and President Aquino did not commit grave
abuse of discretion in disregarding the said clustering.
The JBC invokes its independence, discretion, and wisdom, and maintains that it deemed it wiser
and more in accord with Article VIII, Section 9 of the 1987 Constitution to cluster the nominees for
the six simultaneous vacancies for Sandiganbayan Associate Justice into six separate short lists.
The independence and discretion of the JBC, however, is not without limits. It cannot impair the
President's power to appoint members of the Judiciary and his statutory power to determine the
seniority of the newly-appointed Sandiganbayan Associate Justices. The Court cannot sustain the
strained interpretation of Article VIII, Section 9 of the 1987 Constitution espoused by the JBC, which
ultimately curtailed the President's appointing power.
In its Decision dated November 29, 2016, the Court ruled that the clustering impinged upon the
President's appointing power in the following ways: The President's option for every vacancy was
limited to the five to seven nominees in each cluster. Once the President had appointed a nominee
from one cluster, then he was proscribed from considering the other nominees in the same cluster
for the other vacancies. All the nominees applied for and were found to be qualified for appointment
to any of the vacant Associate Justice positions in the Sandiganbayan, but the JBC failed to explain
why one nominee should be considered for appointment to the position assigned to one specific
cluster only. Correspondingly, the nominees' chance for appointment was restricted to the
consideration of the one cluster in which they were included, even though they applied and were
found to be qualified for all the vacancies. Moreover, by designating the numerical order of the
vacancies, the JBC established the seniority or order of preference of the new Sandiganbayan
Associate Justices, a power which the law (Section 1, paragraph 3 of Presidential Decree No.
160616), rules (Rule II, Section 1 (b) of the Revised Internal Rules of the Sandiganbayan17), and
jurisprudence (Re: Seniority Among the Four Most Recent Appointments to the Position of
Associate Justices of the Court of Appeals18), vest exclusively upon the President.
b. Clustering can be used as a device to
favor or prejudice a qualified
nominee.
The JBC avers that it has no duty to increase the chances of appointment of every candidate it has
adjudged to have met the minimum qualifications for a judicial post. The Court does not impose
upon the JBC such duty, it only requires that the JBC gives all qualified nominees fair and equal
opportunity to be appointed. The clustering by the JBC of nominees for simultaneous or closely
successive vacancies in collegiate courts can actually be a device to favor or prejudice a particular
nominee. A favored nominee can be included in a cluster with no other strong contender to ensure
his/her appointment; or conversely, a nominee can be placed in a cluster with many strong
contenders to minimize his/her chances of appointment.
Without casting aspersion or insinuating ulterior motive on the part of the JBC - which would only be
highly speculative on the part of the Court - hereunder are different scenarios, using the very same
circumstances and nominees in this case, to illustrate how clustering could be used to favor or
prejudice a particular nominee and subtly influence President Aquino's appointing power, had
President Aquino faithfully observed the clustering.
The six nominees actually appointed by President Aquino as Sandiganbayan Associate Justices
were the following:
PERSON APPOINTED SHORT LISTED FOR FORMER POS
Michael Frederick L. Musngi 21st Associate Justice Undersecretary
Chief of Staff o
Secretary, OP,
Reynaldo P. Cruz 19th Associate Justice Undersecretary
Secretary, OP,
Geraldine Faith A. Econg 21st Associate Justice Former Judge,
(RTC), Cebu, f
Office, Philippi
(PMC) Philippin
(PHILJA)
Maria Theresa V. Mendoza-Arcega 17th Associate Justice Judge, RTC, M
years
Karl B. Miranda 20th Associate Justice Assistant Solic
the Solicitor Ge
years
Zaldy V. Trespeses 18th Associate Justice Judicial Staff H
Justice (OCJ),
years
It would be safe to say that all the aforementioned six nominees were strong contenders. If all six
nominees were placed in the same cluster, then only one of them would have been actually
appointed as Sandiganbayan Associate Justice and the other five could no longer be considered for
the still unfilled vacancies. If then Atty. Zaldy V. Trespeses (Trespeses), Judicial Staff Head, OCJ,
was included in the cluster with respondent Econg, PHILJA Chief of Office for PMC, and respondent
Musngi, Undersecretary for Special Concerns and Chief of Staff of the Executive Secretary, OP,
then he would have lesser chance of being appointed as he would have to vie for a single vacancy
with two other strong contenders; and only one of the three would have been appointed. Evidently,
the appointments to the six simultaneous vacancies for Sandiganbayan Associate Justice would
have been different by simply jumbling the clusters of nominees. Even if we go back in history, had
the JBC clustered the nominees for the posts vacated by Supreme Court Associate Justices
Leonardo A. Quisumbing (Quisumbing) and Minita V. Chico-Nazario (Chico-Nazario), and if
Associate Justices Perez and Jose Catral Mendoza (Mendoza) were together in the same cluster,
then only one of them would have been appointed. Also, had the JBC clustered the nominees for
the vacancies resulting from the retirements of Supreme Court Associate Justices Antonio Eduardo
B. Nachura (Nachura) and Conchita Carpio Morales (Carpio Morales), and if Associate Justices
Bienvenido L. Reyes (Reyes) and ESTELA M. Perlas-Bernabe (Perlas-Bernabe) were together in
the same cluster, then the appointment of one of them would have already excluded the other.
c. There are no objective criteria,
standards, or guidelines for the
clustering of nominees by the JBC.
The problem is that the JBC has so far failed to present a legal, objective, and rational basis for
determining which nominee shall be included in a cluster. Simply saying that it is the result of the
deliberation and voting by the JBC for every vacancy is unsatisfactory. A review of the voting
patterns by the JBC Members for the six simultaneous vacancies for Sandiganbayan Associate
Justice only raises more questions and doubts than answers. It would seem, to the casual observer,
that the Chief Justice and the four regular JBC Members exercised block voting most of the time.
Out of the 89 candidates for the six vacancies, there were a total of 3 7 qualified nominees spread
across six separate short lists. Out of the 37 qualified nominees, the Chief Justice and the four
regular JBC Members coincidentally voted for the same 28 nominees in precisely the same
clusters, only varying by just one vote for the other nine nominees.
It is also interesting to note that all the nominees were listed only once in just one cluster, and all the
nominees subsequently appointed as Sandiganbayan Associate Justice were distributed among the
different clusters, except only for respondents Econg and Musngi. Was this by chance or was there
already an agreement among the Chief Justice and the regular JBC Members to limit the nomination
of a candidate to a specific cluster for one specific vacancy, thus, excluding the same candidate
from again being nominated in a different cluster for another vacancy? It is understandable that the
Chief Justice and the four regular JBC Members would agree on whom to nominate because their
nominations were based on the qualifications of the candidates. What is difficult to comprehend is
how they determined the distribution of the nominees to the different clusters in the absence of any
criteria or standard to be observed in the clustering of nominees. This was never explained by the
JBC in any of its Motions even when the issue of clustering is vital to this case. Resultantly, the
Court also asks why were respondents Econg and Musngi nominated in a single cluster? And why
was then Atty. Trespeses not included in the same cluster as respondents Econg and Musngi, or the
clusters of then Undersecretary Reynaldo P. Cruz, RTC Judge Maria Theresa V. Mendoza-Arcega,
or Assistant Solicitor General Karl B. Miranda? Furthermore, what criteria was used when Chief
Justice Sereno and the other four regular JBC Members voted for then Atty. Trespeses for only one
particular cluster, i.e., for the 18th Sandiganbayan Associate Justice, and nowhere else? Atty.
Trespeses did not receive any vote in the other clusters except for the lone vote for him of an ex
officio JBC Member for the vacancy for the 21st Sandiganbayan Associate Justice.
The Court emphasizes that the requirements and qualifications, as well as the powers, duties, and
responsibilities are the same for all vacant posts in a collegiate court, such as the Sandiganbayan;
and if an individual is found to be qualified for one vacancy, then he/she is found to be qualified for
all the other vacancies - there are no distinctions among the vacant posts. It is improbable that the
nominees expressed their desire to be appointed to only a specific vacant position and not the other
vacant positions in the same collegiate court, when neither the Constitution nor the law provides a
specific designation or distinctive description for each vacant position in the collegiate court. The
JBC did not cite any cogent reason in its Motion for Reconsideration-in-Intervention for assigning a
nominee to a particular cluster/vacancy. The Court highlights that without objective criteria,
standards, or guidelines in determining which nominees are to be included in which cluster, the
clustering of nominees for specific vacant posts seems to be at the very least, totally arbitrary. The
lack of such criteria, standards, or guidelines may open the clustering to manipulation to favor or
prejudice a qualified nominee.
d. There is technically no clustering of
nominees for first and second level
trial courts.
The Court further points out that its Decision dated November 29, 2016 only discussed vacancies in
collegiate courts. The constant referral by the JBC to separate short lists of nominees for vacant
judgeship posts in first and second level trial courts as proof of previous clustering is inapt. The
separate short lists in such situations are technically not clustering as the vacancies happened and
were announced at different times and candidates applied for specific vacancies, based on the
inherent differences in the location and jurisdiction of the trial courts, as well as the qualifications of
nominees to the same, hence, justifying a separate short list for each vacant post.
e. While clustering of nominees was
observed in the nominations for
vacancies in the Court of Appeals in
2015, it escaped scrutiny as the
appointments to said vacancies were
not challenged before the Court.
As an example of previous clustering in a collegiate court, the JBC attached to its Motion for
Reconsideration-in-Intervention a transmittal letter dated August 1 7, 2015 of the JBC addressed to
President Aquino, which divided the nominees into four clusters for the four vacancies for Court of
Appeals Associate Justice. The JBC contends that during the deliberations on said nominations,
the ponente and Supreme Court Associate Justice Velasco were both present as JBC consultants
but did not raise any objection.
While it may be true that the JBC already observed clustering in 2015, it is still considered a
relatively new practice, adopted only under Chief Justice Sereno's Chairmanship of the JBC. The
clustering then escaped scrutiny as no party questioned the appointments to the said vacancies.
The view of the consultants was also not solicited or requested by the JBC. The Court now observes
that the vacancies for Court of Appeals Associate Justice in 2015 were not all simultaneous or
closely successive, most of which occurring months apart, specifically, vice the late Associate
Justice Michael P. Elbinias who passed away on November 20, 2014; vice retired Associate Justice
Rebecca De Guia-Salvador, who opted for early retirement effective on January 31, 2015; vice
Associate Justice Hakim S. Abdulwahid, who compulsorily retired on June 12, 2015; and vice
Associate Justice Isaias P. Dicdican who compulsorily retired on July 4, 2015. Even so, the JBC
published a single announcement for all four vacancies on March 15, 2015, with the same deadlines
for submission of applications and supporting documents. This is in stark contrast to the two-week
interval between the compulsory retirements of Supreme Court Associate Justices Perez and Brion
on December 14, 2016 and December 29, 2016, respectively, for which the JBC still made separate
publications, required submission of separate applications, separately processed the applications,
and submitted separate short lists. Additionally, it is noteworthy that the nominations for the four
vacant posts of Court of Appeals Associate Justice were contained in a single letter dated August 1
7, 2015, addressed to President Aquino, through then Executive Secretary Paquito N. Ochoa, Jr.,
whereas in the case of the Sandiganbayan, the JBC submitted six separate letters, all dated
October 26, 2015, transmitting one short list for each of the six vacancies. The separate letters of
transmittal further reinforce the intention of the JBC to prevent the President from "cross-reaching"
or disregarding the clustering of nominees for the six vacancies for Sandiganbayan Associate
Justice and, thus, unduly limit the President's exercise of his power to appoint members of the
Judiciary.
f. The separate short lists for the
current vacancies in the Supreme
Court are not in issue in this case,
but has been brought up by the JBC
in its Motion for Reconsideration-in-
Intervention.
The Court takes the occasion herein to clarify that the application of its ruling in the Decision dated
November 29, 2017 to the situation involving closely successive vacancies in a collegiate court may
be properly addressed in an actual case which squarely raises the issue. It also bears to stress that
the current vacancies in the Supreme Court as a result of the compulsory retirements of Associate
Justices Perez and Brion are not in issue in this case, but has been brought to the fore by the JBC
itself in its Motion for Reconsideration-in-Intervention. Therefore, the Court will refrain from making
any pronouncements on the separate short lists of nominees submitted by the JBC to President
Rodrigo Roa Duterte (Duterte) on December 2, 2016 and December 9, 2016 so as not to preempt
the President's decision on how to treat the separate short lists of nominees for the two current
vacancies in the Supreme Court. The Court will only address the statements made by the JBC in
relation to said short lists by reciting some relevant historical facts relating to the filling-up of
previous vacancies in the Supreme Court.
The JBC avers that it had no choice but to submit separate short lists of nominees to President
Duterte for the vacancies for Supreme Court Associate Justice vice Associate Justices Perez and
Brion, who retired on December 14, 2016 and December 29, 2016, respectively, because there
were different sets of applicants for each, with 14 applicants for the seat vacated by Associate
Justice Perez and 17 applicants for the seat vacated by Associate Justice Brion. The situation is the
own doing of the JBC, as the JBC announced the expected vacancies left by the compulsory
retirements of Associate Justices Perez and Brion, which were merely two weeks apart, through two
separately paid publications on August 4, 2016 and August 18, 2016, respectively, in newspapers of
general circulation; invited the filing of separate applications for the vacancies with different
deadlines; and separately processed the applications of candidates to the said vacancies. The JBC
would inevitably end up with two different sets of nominees, one set for the position vacated by
Justice Perez and another set for that vacated by Justice Brion, notwithstanding that the JBC
undeniably found all nominees in both sets to be qualified to be appointed as Associate Justice of
the Supreme Court, as they all garnered at least four votes.
There had been no similar problems in the past because the JBC jointly announced simultaneous or
closely successive vacancies in the Supreme Court in a single publication, invited the filing by a
candidate of a single application for all the vacancies on the same deadline, jointly processed all
applications, and submitted a single list of qualified nominees to the President, thus, resulting in a
simple, inexpensive, and efficient process of nomination. Such was the case when the JBC
announced the two vacancies for Supreme Court Associate Justice following the retirements of
Associate Justices Quisumbing and Chico-Nazario in 2009. Pertinent portions of the JBC publication
are reproduced below:
The Judicial and Bar Council (JBC) announces the opening, for application or recommendation, of
the: two (2) forthcoming vacant positions of ASSOCIATE JUSTICE OF THE SUPREME COURT
vice Hon. Leonardo A. Quisumbing and Hon. Minita V. Chico-Nazario, who will compulsorily
retire on 6 November and 5 December 2009, respectively, x x x
Applications or recommendation for the two (2) positions in the Supreme Court must be submitted
not later than 28 September 2009 (Monday) x x x to the JBC Secretariat, 2nd Flr. Centennial Bldg.,
Supreme Court, Padre Faura St., Manila (Tel. No. 552-9512; Fax No. 552-9607; email address jbc
_supreme court@yahoo.com.ph or jbc@sc.judiciary.gov.ph). Applicants or recommendees must
submit six (6) copies of the following:
x x xx
The JBC, then headed by Supreme Court Chief Justice Reynato S. Puno, submitted to President
Gloria Macapagal-Arroyo (Macapagal-Arroyo) a single short list dated November 29, 2009 with a
total of six nominees for the two vacancies for Supreme Court Associate Justice, from which,
President Macapagal-Arroyo appointed Associate Justices Perez and Mendoza.
The JBC again announced the two vacancies for Supreme Court Associate Justice due to the
retirements of Associate Justices Nachura and Carpio Morales, thus:
The Judicial and Bar Council (JBC) announces the opening, for application or recommendation, of
the following positions:
1. ASSOCIATE JUSTICE OF THE SUPREME COURT (vice Hon. Antonio Eduardo B. Nachura
and Hon. Conchita Carpio Morales, who will compulsorily retire on 13 and 19 June 2011,
respectively);
x x xx
Applications or recommendations for vacancies in nos. 1-3 must be filed on or before 28 March
2011 (Monday) x x x to the JBC Secretariat, 2nd Flr. Centennial Bldg., Supreme Court, Padre Faura
St., Manila (Tel. No. 552-9512; Fax No. 552-9598; email
address jbcsupremecourt@yahoo.com.ph. Those who applied before these vacancies were
declared open must manifest in writing their interest on or before the said deadline. In case of
recommendations, the recommendees must signify their acceptance either in the recommendation
letter itself or in a separate document.
New applicants or recommendees for positions in the appellate courts must submit the following on
or before 4 April 2011 (Monday) x x x:
x x xx
The single short list dated June 21, 2011, submitted by the JBC, under the Chairmanship of
Supreme Court Chief Justice Renato C. Corona, presented, for President Aquino's consideration,
six nominees for the two vacant posts of Supreme Court Associate Justice, with President Aquino
subsequently appointing Associate Justices Reyes and Perlas-Bernabe.
How the new procedure adopted by the JBC of submitting two separate lists of nominees will also
affect the seniority of the two Supreme Court Associate Justices to be appointed to the current
vacancies is another issue that may arise because of the new JBC procedure. Unlike the present
two separate lists of nominees specifying the vacant post to which they are short-listed for
appointment, the short list of nominees submitted by the JBC before did not identify to which of the
vacant positions, when there are more than one existing vacancies, a qualified candidate is
nominated to as there was only one list of nominees for all vacancies submitted to the President.
Correspondingly, the appointment papers issued by the President, as in the cases of Supreme
Court Associate Justices Perez, Mendoza, Reyes, and Perlas-Bernabe, did not specify the particular
vacant post to which each of them was appointed. The appointment papers of the afore-named
Supreme Court Associate Justices were all similarly worded as follows:
Pursuant to the provisions of existing laws, you are hereby appointed ASSOCIATE JUSTICE OF
THE SUPREME COURT.
By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the
office, furnishing this Office and the Civil Service Commission with copies of your Oath of Office.
As earlier stated, the Court makes no ruling on the above-mentioned divergence between the
procedures in the nomination for existing vacancies in the Supreme Court followed by the
JBC before and by the present JBC as it may be premature to do so and may prejudge
whatever action President Duterte may take on the two separate short lists of nominees for
the current Supreme Court vacancies which were submitted by the JBC.
g. The designation by the JBC of
numbers to the vacant
Sandiganbayan Associate Justice
posts encroached on the President's
power to determine the seniority of
the justices appointed to the said court.
The JBC contends in its Motion for Reconsideration-in-Intervention that its individual members have
different reasons for designating numbers to the vacant Sandiganbayan Associate Justice posts.
The varying reason/s of each individual JBC Members raises the concern whether they each fully
appreciated the constitutional and legal consequences of their act, i.e., that it encroached on the
power, solely vested in the President, to determine the seniority of the justices appointed to a
collegiate court. Each of the six short lists submitted by the JBC to President Aquino explicitly stated
that the nominees were for the Sixteenth (16th), Seventeenth (17th), Eighteenth (18th), Nineteenth
(19th), Twentieth (20th), and Twenty-First (2 Pt) Sandiganbayan Associate Justice, respectively;
and on the faces of said short lists, it could only mean that President Aquino was to make the
appointments in the order of seniority pre-determined by the JBC, and that nominees who applied
for any of the vacant positions, requiring the same qualifications, were deemed to be qualified to be
considered for appointment only to the one vacant position to which his/her cluster was specifically
assigned. Whatever the intentions of the individual JBC Members were, they cannot go against what
has been clearly established by law,19 rules,20 and jurisprudence.21 In its Decision dated November
29, 2016, the Court already adjudged that:
Evidently, based on law, rules, and jurisprudence, the numerical order of the Sandiganbayan
Associate Justices cannot be determined until their actual appointment by the President.
It also bears to point out that part of the President's power to appoint members of a collegiate court,
such as the Sandiganbayan, is the power to determine the seniority or order of preference of such
newly appointed members by controlling the date and order of issuance of said members'
appointment or commission papers. By already designating the numerical order of the vacancies,
the JBC would be establishing the seniority or order of preference of the new Sandiganbayan
Associate Justices even before their appointment by the President and, thus, unduly arrogating unto
itself a vital part of the President's power of appointment.22
It is also not clear to the Court how, as the JBC avowed in its Motion for Reconsideration, the
clustering of nominees for simultaneous vacancies in collegiate courts into separate short lists can
rid the appointment process to the Judiciary of political pressure; or conversely, how the previous
practice of submitting a single list of nominees to the President for simultaneous vacancies in
collegiate courts, requiring the same qualifications, made the appointment process more susceptible
to political pressure. The 1987 Constitution itself, by creating the JBC and requiring that the
President can only appoint judges and Justices from the nominees submitted by the JBC, already
sets in place the mechanism to protect the appointment process from political pressure. By
arbitrarily clustering the nominees for appointment to the six simultaneous vacancies for
Sandiganbayan Associate Justice into separate short lists, the JBC influenced the appointment
process and encroached on the President's power to appoint members of the Judiciary and
determine seniority in the said court, beyond its mandate under the 1987 Constitution. As the Court
pronounced in its Decision dated November 29, 2016, the power to recommend of the JBC cannot
be used to restrict or limit the President's power to appoint as the latter's prerogative to choose
someone whom he/she considers worth appointing to the vacancy in the Judiciary is still paramount.
As long as in the end, the President appoints someone nominated by the JBC, the appointment is
valid, and he, not the JBC, determines the seniority of appointees to a collegiate court.
Finally, the JBC maintains that it is not bound by the Decision dated November 29, 2016 of the
Court in this case on the ground that it is not a party herein. The JBC prays in its Motion for
Reconsideration and Motion for Reconsideration-in-Intervention, among other reliefs and remedies,
for the Court to reverse its ruling in the Decision dated November 29, 2016 denying the Motion for
Intervention of the JBC in the present case. However, the Court has now practically allowed the
intervention of the JBC in this case, by taking into consideration the issues raised and arguments
adduced in its Motion for Reconsideration and Motion for Reconsideration-in-Intervention, but which
the Court found to be unmeritorious.
To recapitulate, the Petition at bar challenged President Aquino's appointment of respondents
Econg and Musngi as Sandiganbayan Associate Justices, which disregarded the clustering by the
JBC of the nominees for the six simultaneous vacancies in said collegiate court into six separate
short lists. The Court ultimately decreed in its Decision dated November 29, 2016 that:
President Aquino validly exercised his discretionary power to appoint members of the Judiciary
when he disregarded the clustering of nominees into six separate shortlists for the vacancies for the
16th, 17th, 18th, 19th, 20th, and 21st Sandiganbayan Associate Justices. President Aquino merely
maintained the well-established practice, consistent with the paramount Presidential constitutional
prerogative, to appoint the six new Sandiganbayan Associate Justices from the 37 qualified
nominees, as if embodied in one JBC list. This does not violate Article VIII, Section 9 of the 1987
Constitution which requires the President to appoint from a list of at least three nominees submitted
by the JBC for every vacancy. To meet the minimum requirement under said constitutional provision
of three nominees per vacancy, there should at least be 18 nominees from the JBC for the six
vacancies for Sandiganbayan Associate Justice; but the minimum requirement was even exceeded
herein because the JBC submitted for the President's consideration a total of 37 qualified nominees.
All the six newly appointed Sandiganbayan Associate Justices met the requirement of nomination by
the JBC under Article VIII, Section 9 of the 1987 Constitution. Hence, the appointments of
respondents Musngi and Econg, as well as the other four new Sandiganbayan Associate Justices,
are valid and do not suffer from any constitutional infirmity.23
The declaration of the Court that the clustering of nominees by the JBC for the simultaneous
vacancies that occurred by the creation of six new positions of Associate Justice of the
Sandiganbayan is unconstitutional was only incidental to its ruling that President Aquino is not
bound by such clustering in making his appointments to the vacant Sandiganbayan Associate
Justice posts. Other than said declaration, the Court did not require the JBC to do or to refrain from
doing something insofar as the issue of clustering of the nominees to the then six vacant posts of
Sandiganbayan Associate Justice was concerned.
As for the other new rules and practices adopted by the JBC which the Court has taken cognizance
of and docketed as a separate administrative matter (viz., Item No. 2: the deletion or non-inclusion
in JBC No. 2016-1, or the Revised Rules of the Judicial and Bar Council, of Rule 8, Section 1 of
JBC-009; and Item No. 3: the removal of incumbent Senior Associate Justices of the Supreme
Court as consultants of the Judicial and Bar Council, referred to in pages 45 to 51 of the Decision
dated November 29, 2016), the JBC is actually being given the opportunity to submit its comment
and be heard on the same. The administrative matter was already raffled to another ponente, thus,
any incident concerning the same should be consolidated in the said administrative matter.
Regarding the Separate Opinion of Associate Justice Caguioa, it must be pointed out that he has
conceded that the President did not commit an unconstitutional act in "disregarding the clustering
done by the JBC" when he chose Associate Justices of the Sandiganbayan "outside" of the
"clustered" lists provided by the JBC.
WHEREFORE, premises considered, except for its motion/prayer for intervention, which the Court
has now granted, the Motion for Reconsideration (with Motion for the Inhibition of the Ponente) and
the Motion for Reconsideration-in-Intervention (Of the Decision dated 29 November 2016) of the
Judicial and Bar Council are DENIED for lack of merit.
Nota bene: The Court has agreed not to issue a ruling herein on the separate short lists of
nominees submitted by the Judicial and Bar Council to President Rodrigo Roa Duterte for the
present vacancies in the Supreme Court resulting from the compulsory retirements of Associate
Justices Jose P. Perez and Arturo D. Brion because these were not in issue nor deliberated upon in
this case, and in order not to preempt the decision the President may take on the said separate
short lists in the exercise of his power to appoint members of the Judiciary under the Constitution.
SO ORDERED.
PET
G.R. No. 191618 November 23, 2010
ATTY. ROMULO B. MACALINTAL, Petitioner,
vs.
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.
DECISION
NACHURA, J.:
Confronting us is an undesignated petition 1 filed by Atty. Romulo B. Macalintal (Atty. Macalintal),
that questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and
unauthorized progeny of Section 4,2 Article VII of the Constitution:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.
While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the
purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a budget
allocation, a seal, a set of personnel and confidential employees, to effect the constitutional
mandate. Petitioners averment is supposedly supported by the provisions of the 2005 Rules of the
Presidential Electoral Tribunal (2005 PET Rules),3 specifically:
(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and
the Associate Justices are designated as "Chairman and Members," respectively;
(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;
(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the
appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the
PET, may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and
(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court
seal.
Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision
does allow the "appointment of additional personnel."
Further, petitioner highlights our decision in Buac v. COMELEC 4 which peripherally declared that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner reiterates that the
constitution of the PET, with the designation of the Members of the Court as Chairman and
Members thereof, contravenes Section 12, Article VIII of the Constitution, which prohibits the
designation of Members of the Supreme Court and of other courts established by law to any agency
performing quasi-judicial or administrative functions.
The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a
Comment5thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is
unspecified and without statutory basis; "the liberal approach in its preparation x x x is a violation of
the well known rules of practice and pleading in this jurisdiction."
In all, the OSG crystallizes the following issues for resolution of the Court:
I purpose."
WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.
II
WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS
UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE
VII OF THE 1987 CONSTITUTION.
III
WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS
OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A
VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION.6
In his Reply,7 petitioner maintains that:
1. He has legal standing to file the petition given his averment of transcendental
importance of the issues raised therein;
2. The creation of the PET, a separate tribunal from the Supreme Court, violates
Section 4, Article VII of the Constitution; and
3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to
Section 12, Article VIII of the Constitution.
We winnow the meanderings of petitioner into the singular issue of whether the constitution of the
PET, composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII
and Section 12, Article VIII of the Constitution.
But first, we dispose of the procedural issue of whether petitioner has standing to file the present
petition.
The issue of locus standi is derived from the following requisites of a judicial inquiry:
1. There must be an actual case or controversy;
2. The question of constitutionality must be raised by the proper party;
3. The constitutional question must be raised at the earliest possible opportunity; and
4. The decision of the constitutional question must be necessary to the determination
of the case itself.8
On more than one occasion we have characterized a proper party as one who has sustained or is in
immediate danger of sustaining an injury as a result of the act complained of. 9 The dust has long
settled on the test laid down in Baker v. Carr:10 "whether the party has alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
questions."11 Until and unless such actual or threatened injury is established, the complainant is not
clothed with legal personality to raise the constitutional question.
Our pronouncements in David v. Macapagal-Arroyo12 illuminate:
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He could
be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to
adequately show that he is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of relief as a" citizen" or
"taxpayer."
xxxx
However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United States Supreme Court laid down the more stringent "direct injury" test in
Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an executive or legislative action,
he must show that he has sustained a direct injury as a result of that action, and it is not sufficient
that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person
who impugns the validity of a statute must have "a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers
Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the
Philippines v. Felix.
However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases,
Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved
to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding
its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a
chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the constitutionality or validity of
laws, regulations and rulings.
xxxx
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:
(1) 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.
Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized
interest in the outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the
petition reads:
2. x x x Since the creation and continued operation of the PET involves the use of public funds and
the issue raised herein is of transcendental importance, it is petitioners humble submission that, as
a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this petition.
But even if his submission is valid, petitioners standing is still imperiled by the white elephant in the
petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-
Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe, Jr. before the
Presidential Electoral Tribunal,13 because judicial inquiry, as mentioned above, requires that the
constitutional question be raised at the earliest possible opportunity. 14Such appearance as counsel
before the Tribunal, to our mind, would have been the first opportunity to challenge the
constitutionality of the Tribunals constitution.
Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is
unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had
ubiquitously appeared and had acknowledged its jurisdiction in 2004. His failure to raise a
seasonable constitutional challenge at that time, coupled with his unconditional acceptance of the
Tribunals authority over the case he was defending, translates to the clear absence of an
indispensable requisite for the proper invocation of this Courts power of judicial review. Even on this
score alone, the petition ought to be dismissed outright.
Prior to petitioners appearance as counsel for then protestee Macapagal-Arroyo, we had occasion
to affirm the grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the
auspicious case of Tecson v. Commission on Elections. 15 Thus -
Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions
of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the
COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead
take on the petitions they directly instituted before it. The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to
enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to
Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-
President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act
1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the
members of the tribunal. Although the subsequent adoption of the parliamentary form of government
under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-
up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the
1987 Constitution.
Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:
The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and Valdez
petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides:
"The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice President and may promulgate its rules for the
purpose."
The word "contest" in the provision means that the jurisdiction of this Court can only be invoked after
the election and proclamation of a President or Vice President. There can be no "contest" before a
winner is proclaimed.16
Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:
G.R. Nos. 161434 and 161634 invoke the Courts exclusive jurisdiction under the last paragraph of
Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion that these petitions
should be dismissed outright for prematurity. The Court has no jurisdiction at this point of time to
entertain said petitions.
The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET)
and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically
and exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all
contests relating to the election, returns, and qualifications" of the President and Vice-President,
Senators, and Representatives. In a litany of cases, this Court has long recognized that these
electoral tribunals exercise jurisdiction over election contests only after a candidate has already
been proclaimed winner in an election. Rules 14 and 15 of the Rules of the Presidential Electoral
Tribunal provide that, for President or Vice-President, election protest or quo warranto may be
filed after the proclamation of the winner.17
Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain
provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003), 18 cannot
claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the
Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework
affirmed in Tecson v. Commission on Elections19 is that the Supreme Court has original jurisdiction
to decide presidential and vice-presidential election protests while concurrently acting as an
independent Electoral Tribunal.
Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does
not authorize the constitution of the PET. And although he concedes that the Supreme Court may
promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is
unconstitutional. However, petitioner avers that it allows the Court to appoint additional personnel for
the purpose, notwithstanding the silence of the constitutional provision.
Petitioners pastiche arguments are all hurled at the Court, hopeful that at least one might possibly
stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed
to promulgate. Apparently, petitioners concept of this adjunct of judicial power is very restrictive.
Fortunately, thanks in no part to petitioners opinion, we are guided by well-settled principles of
constitutional construction.
Verba legis dictates that wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in
J.M. Tuason & Co., Inc. v. Land Tenure Administration20 instructs:
As the Constitution is not primarily a lawyers document, it being essential for the rule of law to
obtain that it should ever be present in the peoples consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.
However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution.21 In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied.22 Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.
Last, ut magis valeat quam pereat the Constitution is to be interpreted as a whole. We intoned
thus in the landmark case of Civil Liberties Union v. Executive Secretary: 23
It is a well-established rule in constitutional construction that no one provision of the Constitution is
to be separated from all the others, to be considered alone, but that all the provisions bearing upon
a particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory.
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to wit:
[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect others.
When they adopted subsection 2, they permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.
On its face, the contentious constitutional provision does not specify the establishment of the PET.
But neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations
which, though unacceptable to petitioner, do not include his restrictive view one which really does
not offer a solution.
Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other
related provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of the
Senate and the House of Representatives.
Before we resort to the records of the Constitutional Commission, we discuss the framework of
judicial power mapped out in the Constitution. Contrary to petitioners assertion, the Supreme
Courts constitutional mandate to act as sole judge of election contests involving our countrys
highest public officials, and its rule-making authority in connection therewith, is not restricted; it
includes all necessary powers implicit in the exercise thereof.
We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25
The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the
Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government." Thus, the 1987 Constitution explicitly
provides that "[t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec.
1], "[t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and
"[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law" [Art. VIII, Sec. 1]. These provisions not only establish a separation of powers by
actual division but also confer plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed
out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government."
The Court could not have been more explicit then on the plenary grant and exercise of judicial
power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from
the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of the Constitution
is sound and tenable.
The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive
branch of government, and the constitution of the PET, is evident in the discussions of the
Constitutional Commission. On the exercise of this Courts judicial power as sole judge of
presidential and vice-presidential election contests, and to promulgate its rules for this purpose, we
find the proceedings in the Constitutional Commission most instructive:
MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY
PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en
banc. This is also to confer on the Supreme Court exclusive authority to enact the necessary rules
while acting as sole judge of all contests relating to the election, returns and qualifications of the
President or Vice-President.
MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with
respect to its internal procedure is already implicit under the Article on the Judiciary; considering,
however, that according to the Commissioner, the purpose of this is to indicate the sole power of the
Supreme Court without intervention by the legislature in the promulgation of its rules on this
particular point, I think I will personally recommend its acceptance to the Committee. 26
xxxx
MR. NOLLEDO. x x x.
With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an
Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership
from both Houses. But my question is: It seems to me that the committee report does not indicate
which body should promulgate the rules that shall govern the Electoral Tribunal and the Commission
on Appointments. Who shall then promulgate the rules of these bodies?
MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a
body distinct and independent already from the House, and so with the Commission on
Appointments also. It will have the authority to promulgate its own rules. 27
On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to
former Chief Justice Roberto Concepcion:
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President.28
Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice
Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:
MR. VILLACORTA. Thank you very much, Madam President.
I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth
paragraph of Section 4 provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.
May I seek clarification as to whether or not the matter of determining the outcome of the contests
relating to the election returns and qualifications of the President or Vice-President is purely a
political matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted
provision not impinge on the doctrine of separation of powers between the executive and the judicial
departments of the government?
MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision
incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.
MR. VILLACORTA. That is right.
MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to
the judiciary because this is strictly an adversarial and judicial proceeding.
MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic
Act 7950 which provides for the Presidential Electoral Tribunal?
FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore,
they are cognizable only by courts. If, for instance, we did not have a constitutional provision on an
electoral tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that
cannot be given jurisdiction over contests.
So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that
in that election, Lopez was declared winner. He filed a protest before the Supreme Court because
there was a republic act which created the Supreme Court as the Presidential Electoral Tribunal.
The question in this case was whether new powers could be given the Supreme Court by law. In
effect, the conflict was actually whether there was an attempt to create two Supreme Courts and the
answer of the Supreme Court was: "No, this did not involve the creation of two Supreme Courts, but
precisely we are giving new jurisdiction to the Supreme Court, as it is allowed by the Constitution.
Congress may allocate various jurisdictions."
Before the passage of that republic act, in case there was any contest between two presidential
candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became
necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize
what was statutory but it is not an infringement on the separation of powers because the power
being given to the Supreme Court is a judicial power. 31
Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not
as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who
proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to
promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and
then emphasized that the sole power ought to be without intervention by the legislative department.
Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-
presidential election contests and our rule-making power connected thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of the
PET in our country cannot be denied.32
Consequently, we find it imperative to trace the historical antecedents of the PET.
Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the
present Constitution did not contain similar provisions and instead vested upon the legislature all
phases of presidential and vice-presidential elections from the canvassing of election returns, to
the proclamation of the president-elect and the vice-president elect, and even the determination, by
ordinary legislation, of whether such proclamations may be contested. Unless the legislature
enacted a law creating an institution that would hear election contests in the Presidential and Vice-
Presidential race, a defeated candidate had no legal right to demand a recount of the votes cast for
the office involved or to challenge the ineligibility of the proclaimed candidate. Effectively,
presidential and vice-presidential contests were non-justiciable in the then prevailing milieu.
The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a
similar provision in its pattern, the Federal Constitution of the United States. Rather, the creation of
such tribunal was left to the determination of the National Assembly. The journal of the 1935
Constitutional Convention is crystal clear on this point:
Delegate Saguin. For an information. It seems that this Constitution does not contain any provision
with respect to the entity or body which will look into the protests for the positions of the President
and Vice-President.
President Recto. Neither does the American constitution contain a provision over the subject.
Delegate Saguin. But then, who will decide these protests?
President Recto. I suppose that the National Assembly will decide on that. 33
To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing
an independent PET to try, hear, and decide protests contesting the election of President and Vice-
President. The Chief Justice and the Associate Justices of the Supreme Court were tasked to sit as
its Chairman and Members, respectively. Its composition was extended to retired Supreme Court
Justices and incumbent Court of Appeals Justices who may be appointed as substitutes for ill,
absent, or temporarily incapacitated regular members.
The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings.
It was mandated to sit en banc in deciding presidential and vice-presidential contests and authorized
to exercise powers similar to those conferred upon courts of justice, including the issuance of
subpoena, taking of depositions, arrest of witnesses to compel their appearance, production of
documents and other evidence, and the power to punish contemptuous acts and bearings. The
tribunal was assigned a Clerk, subordinate officers, and employees necessary for the efficient
performance of its functions.
R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the
bicameral legislature under the 1935 Constitution with the unicameral body of a parliamentary
government.
With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not
directly chosen by the people but elected from among the members of the National Assembly, while
the position of Vice-President was constitutionally non-existent.
In 1981, several modifications were introduced to the parliamentary system. Executive power was
restored to the President who was elected directly by the people. An Executive Committee was
formed to assist the President in the performance of his functions and duties. Eventually, the
Executive Committee was abolished and the Office of Vice-President was installed anew.
These changes prompted the National Assembly to revive the PET by enacting, on December 3,
1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent
Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the
President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other
Purposes." This tribunal was composed of nine members, three of whom were the Chief Justice of
the Supreme Court and two Associate Justices designated by him, while the six were divided
equally between representatives of the majority and minority parties in the Batasang Pambansa.
Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to
recommend the prosecution of persons, whether public officers or private individuals, who in its
opinion had participated in any irregularity connected with the canvassing and/or accomplishing of
election returns.
The independence of the tribunal was highlighted by a provision allocating a specific budget from
the national treasury or Special Activities Fund for its operational expenses. It was empowered to
appoint its own clerk in accordance with its rules. However, the subordinate officers were strictly
employees of the judiciary or other officers of the government who were merely designated to the
tribunal.
After the historic People Power Revolution that ended the martial law era and installed Corazon
Aquino as President, civil liberties were restored and a new constitution was formed.
With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then
statutory PET into a constitutional institution, albeit without its traditional nomenclature:
FR. BERNAS. x x x.
x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to
constitutionalize what was statutory but it is not an infringement on the separation of powers
because the power being given to the Supreme Court is a judicial power. 34
Clearly, petitioners bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman" and
"Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to appoint
personnel; and (4) additional compensation is allocated to the "Members," in order to bolster his
claim of infirmity in the establishment of the PET, are too superficial to merit further attention by the
Court.
Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4,
Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The
following exchange in the 1986 Constitutional Commission should provide enlightenment:
MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:
The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.
Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc
as the sole judge of all presidential and vice-presidential election contests?
MR. SUMULONG. That question will be referred to Commissioner Concepcion.
MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme
Court was able to dispose of each case in a period of one year as provided by law. Of course, that
was probably during the late 1960s and early 1970s. I do not know how the present Supreme Court
would react to such circumstances, but there is also the question of who else would hear the
election protests.
MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules
provided for the hearings and there is not time limit or duration for the election contest to be decided
by the Supreme Court. Also, we will have to consider the historical background that when R.A.
1793, which organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at
least three famous election contests were presented and two of them ended up in withdrawal by the
protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring
to the electoral protest that was lodged by former President Carlos P. Garcia against our "kabalen"
former President Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the
late Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965.
MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of
Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to
have a decision adverse to him. The votes were being counted already, and he did not get what he
expected so rather than have a decision adverse to his protest, he withdrew the case.
xxxx
MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme
Court this matter of resolving presidential and vice-presidential contests?
MR. CONCEPCION. Personally, I would not have any objection.
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President.
MR. CONCEPCION. The time consumed or to be consumed in this contest for President is
dependent upon they key number of teams of revisors. I have no experience insofar as contests in
other offices are concerned.
MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en
banc?
MR. CONCEPCION. Yes.
MR. SUAREZ. I see.
MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened
before teams of three, generally, a representative each of the court, of the protestant and of the
"protestee." It is all a questions of how many teams are organized. Of course, that can be
expensive, but it would be expensive whatever court one would choose. There were times that the
Supreme Court, with sometimes 50 teams at the same time working, would classify the objections,
the kind of problems, and the court would only go over the objected votes on which the parties could
not agree. So it is not as awesome as it would appear insofar as the Court is concerned. What is
awesome is the cost of the revision of the ballots because each party would have to appoint one
representative for every team, and that may take quite a big amount.
MR. SUAREZ. If we draw from the Commissioners experience which he is sharing with us, what
would be the reasonable period for the election contest to be decided?
MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always
manages to dispose of the case in one year.
MR. SUAREZ. In one year. Thank you for the clarification. 35
Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET,
to undertake the Herculean task of deciding election protests involving presidential and vice-
presidential candidates in accordance with the process outlined by former Chief Justice Roberto
Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez that the
additional duty may prove too burdensome for the Supreme Court. This explicit grant of
independence and of the plenary powers needed to discharge this burden justifies the budget
allocation of the PET.
The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an
"awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary
implication.36 We cannot overemphasize that the abstraction of the PET from the explicit grant of
power to the Supreme Court, given our abundant experience, is not unwarranted.
A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the
Supreme Court sitting en banc. In the same vein, although the method by which the Supreme Court
exercises this authority is not specified in the provision, the grant of power does not contain any
limitation on the Supreme Courts exercise thereof. The Supreme Courts method of deciding
presidential and vice-presidential election contests, through the PET, is actually a derivative of the
exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the
subsequent directive in the provision for the Supreme Court to "promulgate its rules for the
purpose."
The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority
conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the
Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal
(HRET),37 which we have affirmed on numerous occasions. 38
Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions
of the SET and the HRET. The discussions point to the inevitable conclusion that the different
electoral tribunals, with the Supreme Court functioning as the PET, are constitutional bodies,
independent of the three departments of government Executive, Legislative, and Judiciary but
not separate therefrom.
MR. MAAMBONG. x x x.
My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal,
either of the House or of the Senate, is it correct to say that these tribunals are constitutional
creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which
are created by mandate of the Constitution but they are not constitutional creations. Is that a good
distinction?
xxxx
MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House
Electoral Tribunal is a constitutional body?
MR. AZCUNA. It is, Madam President.
MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?
MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.
MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77 Phil.
192, will still be applicable to the present bodies we are creating since it ruled that the electoral
tribunals are not separate departments of the government. Would that ruling still be valid?
MR. AZCUNA. Yes, they are not separate departments because the separate departments are the
legislative, the executive and the judiciary; but they are constitutional bodies. 39
The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by our
holding in Lopez v. Roxas, et al.:42
Section 1 of Republic Act No. 1793, which provides that:
"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole judge of
all contests relating to the election, returns, and qualifications of the president-elect and the vice-
president-elect of the Philippines."
has the effect of giving said defeated candidate the legal right to contest judicially the election of the
President-elect of Vice-President-elect and to demand a recount of the votes case for the office
involved in the litigation, as well as to secure a judgment declaring that he is the one elected
president or vice-president, as the case may be, and that, as such, he is entitled to assume the
duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall
be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation
has conferred upon such Court an additional original jurisdiction of an exclusive character.
Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the
Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may
be likened to the fact that courts of first instance perform the functions of such ordinary courts of first
instance, those of court of land registration, those of probate courts, and those of courts of juvenile
and domestic relations. It is, also, comparable to the situation obtaining when the municipal court of
a provincial capital exercises its authority, pursuant to law, over a limited number of cases which
were previously within the exclusive jurisdiction of courts of first instance.
In all of these instances, the court (court of first instance or municipal court) is only one, although the
functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the
exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and
separate from, those of the same court acting as a court of land registration or a probate court, or as
a court of juvenile and domestic relations. So too, the authority of the municipal court of a provincial
capital, when acting as such municipal court, is, territorially more limited than that of the same court
when hearing the aforementioned cases which are primary within the jurisdiction of courts of first
instance. In other words, there is only one court, although it may perform the functions pertaining to
several types of courts, each having some characteristics different from those of the others.
Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with
original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both trial
courts and, appellate courts, without detracting from the fact that there is only one Supreme Court,
one Court of Appeals, and one court of first instance, clothed with authority to discharge said dual
functions. A court of first instance, when performing the functions of a probate court or a court of
land registration, or a court of juvenile and domestic relations, although with powers less broad than
those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot
be inferior to itself. So too, the Presidential Electoral Tribunal is not inferior to the Supreme Court,
since it is the same Court although the functions peculiar to said Tribunal are more limited in scope
than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of
Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment
vested by the Constitution in the President. It merely connotes the imposition of additional duties
upon the Members of the Supreme Court.
By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it
has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution, and it faithfully complies not unlawfully
defies the constitutional directive. The adoption of a separate seal, as well as the change in the
nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the
Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the
Tribunals functions as a special electoral court.
As regards petitioners claim that the PET exercises quasi-judicial functions in contravention of
Section 12, Article VIII of the Constitution, we point out that the issue in Buac v.
COMELEC43 involved the characterization of the enforcement and administration of a law relative to
the conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections.
However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, also in the exercise of quasi-judicial power."
The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution
reads:
SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.
The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which
provides that the power "shall be vested in one Supreme Court and in such lower courts as may be
established by law." Consistent with our presidential system of government, the function of "dealing
with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that
are legally demandable and enforceable" 44 is apportioned to courts of justice. With the advent of the
1987 Constitution, judicial power was expanded to include "the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." 45 The power was
expanded, but it remained absolute.
The set up embodied in the Constitution and statutes characterizes the resolution of electoral
contests as essentially an exercise of judicial power.1avvphi1
At the barangay and municipal levels, original and exclusive jurisdiction over election contests is
vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.
At the higher levels city, provincial, and regional, as well as congressional and senatorial
exclusive and original jurisdiction is lodged in the COMELEC and in the House of Representatives
and Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although
not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in
essence, an exercise of judicial power, because of the explicit constitutional empowerment found in
Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House
Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET
decide election contests, their decisions are still subject to judicial review via a petition for
certiorari filed by the proper party if there is a showing that the decision was rendered with grave
abuse of discretion tantamount to lack or excess of jurisdiction. 46
It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is essentially a judicial power. In the landmark case of
Angara v. Electoral Commission,47Justice Jose P. Laurel enucleated that "it would be inconceivable
if the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of
the powers of government." And yet, at that time, the 1935 Constitution did not contain the
expanded definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present
Constitution.
With the explicit provision, the present Constitution has allocated to the Supreme Court, in
conjunction with latters exercise of judicial power inherent in all courts, 48 the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof. The
power wielded by PET is a derivative of the plenary judicial power allocated to courts of law,
expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.
If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House
Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII.
Surely, the petitioner will be among the first to acknowledge that this is not so. The Constitution
which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the
Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members
thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in
Section 4, Article VII, which exempts the Members of the Court, constituting the PET, from the same
prohibition.
We have previously declared that the PET is not simply an agency to which Members of the Court
were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial department, i.e., the Supreme Court.
McCulloch v. State of Maryland49 proclaimed that "[a] power without the means to use it, is a nullity."
The vehicle for the exercise of this power, as intended by the Constitution and specifically
mentioned by the Constitutional Commissioners during the discussions on the grant of power to this
Court, is the PET. Thus, a microscopic view, like the petitioners, should not constrict an absolute
and constitutional grant of judicial power.
One final note. Although this Court has no control over contrary people and naysayers, we reiterate
a word of caution against the filing of baseless petitions which only clog the Courts docket. The
petition in the instant case belongs to that classification.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO ORDERED.
G.R. No. 221697
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of
Court with extremely urgent application for an ex parte issuance of temporary
restraining order/status quo ante order and/or writ of preliminary injunction assailing the following:
(1) 1 December 2015 Resolution of the Commission on Elections (COMELEC) Second Division; (2)
23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11
December 2015 Resolution of the COMELEC First Division; and ( 4) 23 December 2015 Resolution
of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139
(DC) for having been issued without jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in
the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968.
Parental care and custody over petitioner was passed on by Edgardo to his relatives, Emiliano
Militar (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano reported and
registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In
her Foundling Certificate and Certificate of Live Birth, the petitioner was given the name "Mary
Grace Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando
Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the
Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial court granted their petition
and ordered that petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to
"Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-Iloilo on
petitioner's foundling certificate reflecting the court decreed adoption, 2 the petitioner's adoptive
mother discovered only sometime in the second half of 2005 that the lawyer who handled
petitioner's adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating
petitioner's new name and the name of her adoptive parents. 3 Without delay, petitioner's mother
executed an affidavit attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4
May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace Natividad
Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local
COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's
Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila. 5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 6 by the
Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed
her Philippine passport and respectively secured Philippine Passport Nos. L881511 and
DD156616.7
Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the
Philippines8 but she opted to continue her studies abroad and left for the United States of America
(U.S.) in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts
where she earned her Bachelor of Arts degree in Political Studies. 9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen
of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous
of being with her husband who was then based in the U.S., the couple flew back to the U.S. two
days after the wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April
1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in
the Philippines on 10 July 1998 and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S.
Passport No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her
father's candidacy for President in the May 2004 elections. It was during this time that she gave birth
to her youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines
upon learning of her father's deteriorating medical condition. 17 Her father slipped into a coma and
eventually expired. The petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his estate. 18
According to the petitioner, the untimely demise of her father was a severe blow to her entire family.
In her earnest desire to be with her grieving mother, the petitioner and her husband decided to move
and reside permanently in the Philippines sometime in the first quarter of 2005. 19 The couple began
preparing for their resettlement including notification of their children's schools that they will be
transferring to Philippine schools for the next semester; 20coordination with property movers for the
relocation of their household goods, furniture and cars from the U.S. to the Philippines; 21 and inquiry
with Philippine authorities as to the proper procedure to be followed in bringing their pet dog into the
country.22 As early as 2004, the petitioner already quit her job in the U.S. 23
Finally, petitioner came home to the Philippines on 24 May 2005 24 and without delay, secured a Tax
Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately
followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as
to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she and her husband
purchased a condominium unit with a parking slot at One Wilson Place Condominium in San Juan
City in the second half of 2005.27 The corresponding Condominium Certificates of Title covering the
unit and parking slot were issued by the Register of Deeds of San Juan City to petitioner and her
husband on 20 February 2006.28 Meanwhile, her children of school age began attending Philippine
private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some
of the family's remaining household belongings. 29 She travelled back to the Philippines on 11 March
2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's
change and abandonment of their address in the U.S. 31 The family home was eventually sold on 27
April 2006.32 Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the
country on 4 May 2006 and started working for a major Philippine company in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills,
Quezon City where they built their family home34 and to this day, is where the couple and their
children have been residing.35 A Transfer Certificate of Title covering said property was issued in the
couple's name by the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.36 Under
the same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her three minor children on
10 July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on
petitioner's petitions and declared that she is deemed to have reacquired her Philippine citizenship
while her children are considered as citizens of the Philippines.38 Consequently, the BI issued
Identification Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August
2006.40 She also secured from the DFA a new Philippine Passport bearing the No.
XX4731999.41 This passport was renewed on 18 March 2014 and she was issued Philippine
Passport No. EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the
Movie and Television Review and Classification Board (MTRCB). 43 Before assuming her post,
petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of America and
Renunciation of American Citizenship" before a notary public in Pasig City on 20 October 2010, 44 in
satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225.45 The following day, 21
October 2010 petitioner submitted the said affidavit to the BI 46 and took her oath of office as
Chairperson of the MTRCB.47 From then on, petitioner stopped using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an
"Oath/Affirmation of Renunciation of Nationality of the United States."49 On that day, she
accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had
taken her oath as MTRCB Chairperson on 21 October 2010 with the intent, among others, of
relinquishing her American citizenship.50 In the same questionnaire, the petitioner stated that she
had resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July
1991 and from May 2005 to present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality
of the United States" effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for
Senator for the 2013 Elections wherein she answered "6 years and 6 months" to the question
"Period of residence in the Philippines before May 13, 2013." 53 Petitioner obtained the highest
number of votes and was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In
her COC, the petitioner declared that she is a natural-born citizen and that her residence in the
Philippines up to the day before 9 May 2016 would be ten (10) years and eleven (11) months
counted from 24 May 2005.57 The petitioner attached to her COC an "Affidavit Affirming
Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon City
on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several
COMELEC cases against her which were the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to
deny due course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to
the COMELEC Second Division.59She is convinced that the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is that petitioner committed material misrepresentation
when she stated in her COC that she is a natural-born Filipino citizen and that she is a resident of
the Philippines for at least ten (10) years and eleven (11) months up to the day before the 9 May
2016 Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born
Filipino on account of the fact that she was a foundling. 62 Elamparo claimed that international law
does not confer natural-born status and Filipino citizenship on foundlings. 63 Following this line of
reasoning, petitioner is not qualified to apply for reacquisition of Filipino citizenship under R.A. No.
9225 for she is not a natural-born Filipino citizen to begin with.64Even assuming arguendo that
petitioner was a natural-born Filipino, she is deemed to have lost that status when she became a
naturalized American citizen.65 According to Elamparo, natural-born citizenship must be continuous
from birth.66
On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn
declaration she made in her 2012 COC for Senator wherein she indicated that she had resided in
the country for only six ( 6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise
insisted that assuming arguendo that petitioner is qualified to regain her natural-born status under
R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution as her
residence could only be counted at the earliest from July 2006, when she reacquired Philippine
citizenship under the said Act. Also on the assumption that petitioner is qualified to reacquire lost
Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in the
Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually
a petition for quo warranto which could only be filed if Grace Poe wins in the
Presidential elections, and that the Department of Justice (DOJ) has primary
jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain allegations
which, if hypothetically admitted, would make false the statement in her COC that she
is a natural-born Filipino citizen nor was there any allegation that there was a willful or
deliberate intent to misrepresent on her part;
(3) she did not make any material misrepresentation in the COC regarding her
citizenship and residency qualifications for:
a. the 1934 Constitutional Convention deliberations show that foundlings
were considered citizens;
b. foundlings are presumed under international law to have been born of
citizens of the place where they are found;
c. she reacquired her natural-born Philippine citizenship under the
provisions of R.A. No. 9225;
d. she executed a sworn renunciation of her American citizenship prior to
the filing of her COC for President in the May 9, 2016 Elections and that
the same is in full force and effect and has not been withdrawn or
recanted;
e. the burden was on Elamparo in proving that she did not possess
natural-born status;
f. residence is a matter of evidence and that she reestablished her
domicile in the Philippines as early as May 24, 2005;
g. she could reestablish residence even before she reacquired natural-
born citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for
Senator was an honest mistake, not binding and should give way to
evidence on her true date of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of
the Filipino people to decide a purely political question, that is, should
she serve as the country's next leader.68
After the parties submitted their respective Memoranda, the petition was deemed submitted for
resolution.
On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that
petitioner's COC, filed for the purpose of running for the President of the Republic of the Philippines
in the 9 May 2016 National and Local Elections, contained material representations which are false.
The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course
to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of
Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local
Elections filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is
hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the
COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same. 70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P.
Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC
which were consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of
Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite
residency and citizenship to qualify her for the Presidency. 72
Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of
unknown parentage, particularly foundlings, cannot be considered natural-born Filipino citizens
since blood relationship is determinative of natural-born status.73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the fact that foundlings were not
expressly included in the categories of citizens in the 193 5 Constitution is indicative of the framers'
intent to exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born
citizen.75
Neither can petitioner seek refuge under international conventions or treaties to support her claim
that foundlings have a nationality.76 According to Tatad, international conventions and treaties are
not self-executory and that local legislations are necessary in order to give effect to treaty
obligations assumed by the Philippines.77 He also stressed that there is no standard state practice
that automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire
Philippine citizenship under R.A. No. 9225 because it only applies to former natural-born citizens
and petitioner was not as she was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10)
year residency requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only
from the time she renounced her American citizenship which was sometime in 2010 or
2011.81 Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as
evinced by the fact that her husband stayed thereat and her frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No.
15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the
status of a natural-born citizen.83 He advanced the view that former natural-born citizens who are
repatriated under the said Act reacquires only their Philippine citizenship and will not revert to their
original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator that she had only been a
resident of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013
Elections operates against her. Valdez rejected petitioner's claim that she could have validly
reestablished her domicile in the Philippines prior to her reacquisition of Philippine citizenship. In
effect, his position was that petitioner did not meet the ten (10) year residency requirement for
President.
Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, 85 docketed as SPA
No. 15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for
President should be cancelled on the ground that she did not possess the ten-year period of
residency required for said candidacy and that she made false entry in her COC when she stated
that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9 May
2016.86 Contreras contended that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to reacquire Philippine
citizenship was approved by the BI.87 He asserted that petitioner's physical presence in the country
before 18 July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she
was then living here as an American citizen and as such, she was governed by the Philippine
immigration laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition
did not invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68
of the Omnibus Election Code.89 Instead, Tatad completely relied on the alleged lack of residency
and natural-born status of petitioner which are not among the recognized grounds for the
disqualification of a candidate to an elective office. 90
Second, the petitions filed against her are basically petitions for quo warranto as they focus on
establishing her ineligibility for the Presidency.91 A petition for quo warranto falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC. 92
Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-born
citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a nationality and are
presumed to be citizens of the country where they are found. 94 Consequently, the petitioner is
considered as a natural-born citizen of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No.
9225 or the right to reacquire her natural-born status.96 Moreover, the official acts of the Philippine
Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of
the BI declaring her as natural-born citizen, her appointment as MTRCB Chair and the issuance of
the decree of adoption of San Juan RTC.97 She believed that all these acts reinforced her position
that she is a natural-born citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her
domicile of choice in the Philippines as demonstrated by her children's resettlement and schooling in
the country, purchase of a condominium unit in San Juan City and the construction of their family
home in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines
even before she renounced her American citizenship as long as the three determinants for a change
of domicile are complied with.100She reasoned out that there was no requirement that renunciation
of foreign citizenship is a prerequisite for the acquisition of a new domicile of choice. 101
Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was
a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that
petitioner is not a natural-born citizen, that she failed to complete the ten (10) year residency
requirement, and that she committed material misrepresentation in her COC when she declared
therein that she has been a resident of the Philippines for a period of ten (10) years and eleven (11)
months as of the day of the elections on 9 May 2016. The COMELEC First Division concluded that
she is not qualified for the elective position of President of the Republic of the Philippines. The
dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,
to GRANT the Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's
Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution denying
petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary restraining order/status
quo ante order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining
orders were issued by the Court enjoining the COMELEC and its representatives from implementing
the assailed COMELEC Resolutions until further orders from the Court. The Court also ordered the
consolidation of the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter,
oral arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and
SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA
No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs.
Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1
December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11
December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions emanated are tainted
with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be denied due
course or cancelled "on the exclusive ground" that she made in the certificate a false material
representation. The exclusivity of the ground should hedge in the discretion of the COMELEC and
restrain it from going into the issue of the qualifications of the candidate for the position, if, as in this
case, such issue is yet undecided or undetermined by the proper authority. The COMELEC cannot
itself, in the same cancellation case, decide the qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C,
Section 2:
Section 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial,
and city officials, and appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general jurisdiction,
or involving elective barangay officials decided by trial courts of limited
jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final,
executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling
places, appointment of election officials and inspectors, and registration
of voters.
(4) Deputize, with the concurrence of the President, law enforcement
agencies and instrumentalities of the Government, including the Armed
Forces of the Philippines, for the exclusive purpose of ensuring free,
orderly, honest, peaceful, and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or
coalitions which, in addition to other requirements, must present their
platform or program of government; and accredit citizens' arms of the
Commission on Elections. Religious denominations and sects shall not
be registered. Those which seek to achieve their goals through violence
or unlawful means, or refuse to uphold and adhere to this Constitution, or
which are supported by any foreign government shall likewise be refused
registration.
 Financial contributions from foreign governments and their agencies to
political parties, organizations, coalitions, or candidates related to
elections constitute interference in national affairs, and, when accepted,
shall be an additional ground for the cancellation of their registration with
the Commission, in addition to other penalties that may be prescribed by
law.
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including acts
or omissions constituting election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall
be posted, and to prevent and penalize all forms of election frauds,
offenses, malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or employee
it has deputized, or the imposition of any other disciplinary action, for
violation or disregard of, or disobedience to its directive, order, or
decision.
(9) Submit to the President and the Congress a comprehensive report on
the conduct of each election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI,
Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be composed
of nine Members, three of whom shall be Justices of the Supreme Court to be
designated by the Chief Justice, and the remaining six shall be Members of the Senate
or the House of Representatives, as the case may be, who shall be chosen on the
basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to
the election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of the President, the
Vice-President, Senators and the Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on
Elections,104 which was affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is our
guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates,
the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 1, the
following:
Grounds for disqualification. - Any candidate who does not possess all
the qualifications of a candidate as provided for by the Constitution or by
existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive
matter which the COMELEC, in the exercise of its rule-making power under Art. IX, A, 6 of the
Constitution, cannot do it. It is noteworthy that the Constitution withholds from the COMELEC even
the power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. [Art. IX, C, 2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in
12 and 68 of the Omnibus Election Code and in 40 of the Local Government Code and are for the
purpose of barring an individual from becoming a candidate or from continuing as a candidate for
public office. In a word, their purpose is to eliminate a candidate from the race either from the start
or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications
prescribed in the Constitution or the statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that
he is not disqualified from becoming a candidate or continuing as a candidate for a public office and
vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien
has the qualifications prescribed in 2 of the Law does not imply that he does not suffer from any of
[the] disqualifications provided in 4.
Before we get derailed by the distinction as to grounds and the consequences of the respective
proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring
the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza
lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized proceeding for
determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be determined lest he wins because of the
very acts for which his disqualification is being sought. That is why it is provided that if the grounds
for disqualification are established, a candidate will not be voted for; if he has been voted for, the
votes in his favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even
after the elections of May 8, 1995. This is contrary to the summary character proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they seek to fill, leaving the
determination of their qualifications to be made after the election and only in the event they are
elected. Only in cases involving charges of false representations made in certificates of candidacy is
the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for
President, Vice President, Senators and members of the House of Representatives. (R.A. No. 7166,
15) The purpose is to preserve the prerogatives of the House of Representatives Electoral
Tribunal and the other Tribunals as "sole judges" under the Constitution of the election,
returns and qualifications of members of Congress of the President and Vice President, as the case
may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to
the amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25.
This, the 15 February1993 version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from continuing as a candidate. 107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final
decision of a competent court, guilty of, or found by the Commission to be suffering from any
disqualification provided by law or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a
Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a
combination thereof, shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized
proceeding for determining before election the qualifications of candidate. Such that, as presently
required, to disqualify a candidate there must be a declaration by a final judgment of a competent
court that the candidate sought to be disqualified "is guilty of or found by the Commission to be
suffering from any disqualification provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to
the other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the
COMELEC to determine the qualification of a candidate. The facts of qualification must beforehand
be established in a prior proceeding before an authority properly vested with jurisdiction. The prior
determination of qualification may be by statute, by executive order or by a judgment of a competent
court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of candidacy be
cancelled or denied due course on grounds of false representations regarding his or her
qualifications, without a prior authoritative finding that he or she is not qualified, such prior authority
being the necessary measure by which the falsity of the representation can be found. The only
exception that can be conceded are self-evident facts of unquestioned or unquestionable veracity
and judicial confessions. Such are, anyway, bases equivalent to prior decisions against which the
falsity of representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals
with, as in this case, alleged false representations regarding the candidate's citizenship and
residence, forced the COMELEC to rule essentially that since foundlings108 are not mentioned in the
enumeration of citizens under the 1935 Constitution, 109 they then cannot be citizens. As the
COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it all.
This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot
rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is certain that
such relationship is indemonstrable," proceeded to say that "she now has the burden to present
evidence to prove her natural filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither unknown nor
unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity
and Filiation.110 That said, there is more than sufficient evider1ce that petitioner has Filipino parents
and is therefore a natural-born Filipino. Parenthetically, the burden of proof was on private
respondents to show that petitioner is not a Filipino citizen. The private respondents should have
shown that both of petitioner's parents were aliens. Her admission that she is a foundling did not
shift the burden to her because such status did not exclude the possibility that her parents were
Filipinos, especially as in this case where there is a high probability, if not certainty, that her parents
are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities are unknown, but
whether such parents are Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to
induce belief in its existence or no-existence. Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability of improbability of the fact
in issue.
The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) 111 that
from 1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total
number of Filipinos born in the country was 10,558,278. The statistical probability that any child born
in the Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner
presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there
were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the population were
Filipinos. In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also
presented were figures for the child producing ages (15-49). In 1960, there were 230,528 female
Filipinos as against 730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino
males and 886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190
female aliens, or 99.56%. That same year, there were 245,740 Filipino males as against only 1,165
male aliens or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner Arthur Lim
admitted, during the oral arguments, that at the time petitioner was found in 1968, the majority of the
population in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was
abandoned as an infant in a Roman Catholic Church in Iloilo City.1wphi1 She also has typical
Filipino features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according to the ordinary course of
nature and the ordinary habits of life.113 All of the foregoing evidence, that a person with typical
Filipino features is abandoned in Catholic Church in a municipality where the population of the
Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a
child born in the province would be a Filipino, would indicate more than ample probability if not
statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on which
it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the
words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the Philippines so they
can get pregnant and leave their newborn babies behind. We do not face a situation where the
probability is such that every foundling would have a 50% chance of being a Filipino and a 50%
chance of being a foreigner. We need to frame our questions properly. What are the chances that
the parents of anyone born in the Philippines would be foreigners? Almost zero. What are the
chances that the parents of anyone born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were
1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children in the
Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to
natural born Filipino children is 1:1357. This means that the statistical probability that any child born
in the Philippines would be a natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total
number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino
children is 1:661. This means that the statistical probability that any child born in the Philippines on
that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers for us, but I am
confident that the statistical probability that a child born in the Philippines would be a natural born
Filipino will not be affected by whether or not the parents are known. If at all, the likelihood that a
foundling would have a Filipino parent might even be higher than 99.9%. Filipinos abandon their
children out of poverty or perhaps, shame. We do not imagine foreigners abandoning their children
here in the Philippines thinking those infants would have better economic opportunities or believing
that this country is a tropical paradise suitable for raising abandoned children. I certainly doubt
whether a foreign couple has ever considered their child excess baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and render them stateless just because there may
be a theoretical chance that one among the thousands of these foundlings might be the child of not
just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make
any sense. Given the statistical certainty - 99.9% - that any child born in the Philippines would be a
natural born citizen, a decision denying foundlings such status is effectively a denial of their
birthright. There is no reason why this Honorable Court should use an improbable hypothetical to
sacrifice the fundamental political rights of an entire class of human beings. Your Honor,
constitutional interpretation and the use of common sense are not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude
foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings,
there is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal
Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of the
framers and of the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.115
As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be covered by the
enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The
natural children of a foreign father and a Filipino mother not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman
refers to natural children or to any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or
illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino,
that is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish
territory are considered Spaniards, because the presumption is that a child of unknown parentage is
the son of a Spaniard. This may be applied in the Philippines in that a child of unknown parentage
born in the Philippines is deemed to be Filipino, and there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of
unknown parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not
unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina
with a foreigner who does not recognize the child. Their parentage is not unknown and I think those
of overseas Filipino mother and father [whom the latter] does not recognize, should also be
considered as Filipinos.
President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the
constitution need [not] refer to them. By international law the principle that children or people born in
a country of unknown parents are citizens in this nation is recognized, and it is not necessary to
include a provision on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there was any objection to
the notion that persons of "unknown parentage" are not citizens but only because their number was
not enough to merit specific mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented an amendment to
include as Filipino citizens the illegitimate children with a foreign father of a mother
who was a citizen of the Philippines, and also foundlings; but this amendment was
defeated primarily because the Convention believed that the cases, being too few to
warrant the inclusion of a provision in the Constitution to apply to them, should be
governed by statutory legislation. Moreover, it was believed that the rules of
international law were already clear to the effect that illegitimate children followed the
citizenship of the mother, and that foundlings followed the nationality of the place
where they were found, thereby making unnecessary the inclusion in the Constitution
of the proposed amendment.
This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:
We all know that the Rafols proposal was rejected. But note that what was declined was the
proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain
the constitutional silence is by saying that it was the view of Montinola and Roxas which prevailed
that there is no more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a
constitution can constitutionalize rules based on assumptions that are imperfect or even wrong.
They can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas
were able to convince their colleagues in the convention that there is no more need to expressly
declare foundlings as Filipinos because they are already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos
under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the
1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by
Chief Justice Fernando: the constitution is not silently silent, it is silently vocal. 118
The Solicitor General makes the further point that the framers "worked to create a just and humane
society," that "they were reasonable patriots and that it would be unfair to impute upon them a
discriminatory intent against foundlings." He exhorts that, given the grave implications of the
argument that foundlings are not natural-born Filipinos, the Court must search the records of the
1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of
Filipinos. The burden is on those who wish to use the constitution to discriminate against foundlings
to show that the constitution really intended to take this path to the dark side and inflict this across
the board marginalization."
We find no such intent or language permitting discrimination against foundlings. On the contrary, all
three Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to
render social justice. Of special consideration are several provisions in the present charter: Article II,
Section 11 which provides that the "State values the dignity of every human person and guarantees
full respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest
priority to the enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities x x x" and Article XV, Section 3 which
requires the State to defend the "right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development." Certainly, these provisions contradict an intent to discriminate
against foundlings on account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do
not provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a
Filipino in the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code
which provides that "[l]aws relating to family rights, duties, status, conditions, legal capacity of
persons are binding on citizens of the Philippines even though living abroad." Adoption deals with
status, and a Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis
and Ellis v. Republic, 119 a child left by an unidentified mother was sought to be adopted by aliens.
This Court said:
In this connection, it should be noted that this is a proceedings in rem, which no court may entertain
unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also
over the res, which is the personal status of Baby Rose as well as that of petitioners herein. Our
Civil Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural person is
determined by the latter's nationality. Pursuant to this theory, we have jurisdiction over the status of
Baby Rose, she being a citizen of the Philippines, but not over the status of the petitioners, who are
foreigners.120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern
the Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the
"Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and
Policies on the Adoption of Filipino Children and For Other Purposes" (otherwise known as the
Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all
expressly refer to "Filipino children" and include foundlings as among Filipino children who may be
adopted.
It has been argued that the process to determine that the child is a foundling leading to the issuance
of a foundling certificate under these laws and the issuance of said certificate are acts to acquire or
perfect Philippine citizenship which make the foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect their Philippine
citizenship." In the first place, "having to perform an act" means that the act must be personally done
by the citizen. In this instance, the determination of foundling status is done not by the child but by
the authorities.121 Secondly, the object of the process is the determination of the whereabouts of the
parents, not the citizenship of the child. Lastly, the process is certainly not analogous to
naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by
one born of an alien father and a Filipino mother under the 1935 Constitution, which is an act to
perfect it.
In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as
evidenced by a Foundling Certificate issued in her favor. 122 The Decree of Adoption issued on 13
May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley
Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence
effectively affirming petitioner's status as a foundling.123
Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation. 124 On the other hand,
generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
Generally accepted principles of international law include international custom as evidence of a
general practice accepted as law, and general principles of law recognized by civilized
nations.125 International customary rules are accepted as binding as a result from the combination of
two elements: the established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinionjuris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.126 "General principles of law recognized by civilized nations"
are principles "established by a process of reasoning" or judicial logic, based on principles which are
"basic to legal systems generally,"127 such as "general principles of equity, i.e., the general
principles of fairness and justice," and the "general principle against discrimination" which is
embodied in the "Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and Occupation." 128 These are the same core
principles which underlie the Philippine Constitution itself, as embodied in the due process and
equal protection clauses of the Bill of Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the
generally accepted principles of international law and binding on the State. 130 Article 15 thereof
states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change
his nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of
the UNCRC imposes the following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name,
the right to acquire a nationality and as far as possible, the right to know and be cared for by his or
her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national
law and their obligations under the relevant international instruments in this field, in particular where
the child would otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights
(ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right, to such measures of protection as are required
by his status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant
nationality from birth and ensure that no child is stateless. This grant of nationality must be at the
time of birth, and it cannot be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the applicant to
be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines, are generally
accepted principles of international law. The first is Article 14 of the 1930 Hague Convention on
Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed
to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the country of birth. If the
child's parentage is established, its nationality shall be determined by the rules applicable in cases
where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of the State
in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the country where he is
found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of
Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary,
be considered to have been born within the territory of parents possessing the nationality of that
State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the
Reduction of Statelessness does not mean that their principles are not binding. While the
Philippines is not a party to the 1930 Hague Convention, it is a signatory to the Universal
Declaration on Human Rights, Article 15(1) ofwhich 131effectively affirms Article 14 of the 1930
Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of
Statelessness" merely "gives effect" to Article 15(1) of the UDHR. 132 In Razon v. Tagitis, 133 this
Court noted that the Philippines had not signed or ratified the "International Convention for the
Protection of All Persons from Enforced Disappearance." Yet, we ruled that the proscription against
enforced disappearances in the said convention was nonetheless binding as a "generally accepted
principle of international law." Razon v. Tagitis is likewise notable for declaring the ban as a
generally accepted principle of international law although the convention had been ratified by only
sixteen states and had not even come into force and which needed the ratification of a minimum of
twenty states. Additionally, as petitioner points out, the Court was content with the practice of
international and regional state organs, regional state practice in Latin America, and State Practice
in the United States.
Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada, 134 where only four countries had "either ratified or acceded to" 135 the 1966 "Convention on
the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the
case was decided in 2005. The Court also pointed out that that nine member countries of the
European Common Market had acceded to the Judgments Convention. The Court also cited U.S.
laws and jurisprudence on recognition of foreign judgments. In all, only the practices of fourteen
countries were considered and yet, there was pronouncement that recognition of foreign judgments
was widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted
principles of international law" are based not only on international custom, but also on "general
principles of law recognized by civilized nations," as the phrase is understood in Article 38.1
paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination,
which are fundamental principles underlying the Bill of Rights and which are "basic to legal systems
generally,"136 support the notion that the right against enforced disappearances and the recognition
of foreign judgments, were correctly considered as "generally accepted principles of international
law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and
Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those
countries follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961
Convention on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief
Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries
surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances, including the
practice of jus sanguinis countries, show that it is a generally accepted principle of international law
to presume foundlings as having been born of nationals of the country in which the foundling is
found.
Current legislation reveals the adherence of the Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption,
expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children who
could be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings.
Passports are by law, issued only to citizens. This shows that even the executive department, acting
through the DFA, considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our
Constitution. The presumption of natural-born citizenship of foundlings stems from the presumption
that their parents are nationals of the Philippines. As the empirical data provided by the PSA show,
that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of nationality of
foundlings were designed to address the plight of a defenseless class which suffers from a
misfortune not of their own making. We cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the community of nations. The Solicitor General's
warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of foundlings
renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to deny them political
status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A.
No. 9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that
since the applicant must perform an act, what is reacquired is not "natural-born" citizenship but only
plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation
statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:
Moreover, repatriation results in the recovery of the original nationality. This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized
Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They
include Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated repatriation
process that restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit,142 which cited Tabasa v. Court of Appeals,143where we said that "[t]he repatriation of the
former Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission on
Audit144 is categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he
will ... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying
"that natural-born citizenship must begin at birth and remain uninterrupted and continuous from
birth." R.A. No. 9225 was obviously passed in line with Congress' sole prerogative to determine how
citizenship may be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may
be reacquired even if it had been once lost. It is not for the COMELEC to disagree with the
Congress' determination.
More importantly, COMELEC's position that natural-born status must be continuous was already
rejected in Bengson III v. HRET145 where the phrase "from birth" was clarified to mean at the time of
birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born
citizen thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In Bengson
III v. HRET, this Court pointed out that there are only two types of citizens under the 1987
Constitution: natural-born citizen and naturalized, and that there is no third category for repatriated
citizens:
It is apparent from the enumeration of who are citizens under the present Constitution that there are
only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino.
Noteworthy is the absence in said enumeration of a separate category for persons who, after losing
Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons for the loss of their
citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go through naturalization proceedings in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the House of Representatives. 146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we
may always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied.
In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in application for the reason that
judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part
of the legal system of the Philippines." This Court also said that "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 people's reliance thereupon should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood
when she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the
names of her adoptive parents, and this misled the BI to presume that she was a natural-born
Filipino. It has been contended that the data required were the names of her biological parents
which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One of the effects of
adoption is "to sever all legal ties between the biological parents and the adoptee, except when the
biological parent is the spouse of the adoptee." 149 Under R.A. No. 8552, petitioner was also entitled
to an amended birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)"
and which certificate "shall not bear any notation that it is an amended issue."150 That law also
requires that "[a]ll records, books, and papers relating to the adoption cases in the files of the court,
the Department [of Social Welfare and Development], or any other agency or institution participating
in the adoption proceedings shall be kept strictly confidential." 151 The law therefore allows petitioner
to state that her adoptive parents were her birth parents as that was what would be stated in her
birth certificate anyway. And given the policy of strict confidentiality of adoption records, petitioner
was not obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same
case for cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The
whole process undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner committed
false material representation when she stated in her COC that she has before and until 9 May 2016
been a resident of the Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the
day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines
before the day of the elections. Since the forthcoming elections will be held on 9 May 2016,
petitioner must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In
answer to the requested information of "Period of Residence in the Philippines up to the day before
May 09, 2016," she put in "10 years 11 months" which according to her pleadings in these cases
corresponds to a beginning date of 25 May 2005 when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the
Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily presence in
a new locality; 2. an intention to remain there; and 3. an intention to abandon the old domicile. 152 To
successfully effect a change of domicile, one must demonstrate an actual removal or an actual
change of domicile; a bona fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the purpose. In other words, there
must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or
at the domicile of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual. 153
Petitioner presented voluminous evidence showing that she and her family abandoned their U.S.
domicile and relocated to the Philippines for good. These evidence include petitioner's former U.S.
passport showing her arrival on 24 May 2005 and her return to the Philippines every time she
travelled abroad; e-mail correspondences starting in March 2005 to September 2006 with a freight
company to arrange for the shipment of their household items weighing about 28,000 pounds to the
Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to
the Philippines; school records of her children showing enrollment in Philippine schools starting
June 2005 and for succeeding years; tax identification card for petitioner issued on July 2005; titles
for condominium and parking slot issued in February 2006 and their corresponding tax declarations
issued in April 2006; receipts dated 23 February 2005 from the Salvation Army in the U.S.
acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S. Postal
Service confirming request for change of address; final statement from the First American Title
Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up
questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of
petitioner on 24 May 2005 and that she and her family stayed with affiant until the condominium was
purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly decided to
relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work
and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the COMELEC,
particularly in its Resolution in the Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been timely changed as
of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the
presence of the first two requisites, namely, physical presence and animus manendi, but maintained
there was no animus non-revertendi.154 The COMELEC disregarded the import of all the evidence
presented by petitioner on the basis of the position that the earliest date that petitioner could have
started residence in the Philippines was in July 2006 when her application under R.A. No. 9225 was
approved by the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, the private respondents
also added Reyes v. COMELEC.158 Respondents contend that these cases decree that the stay of
an alien former Filipino cannot be counted until he/she obtains a permanent resident visa or
reacquires Philippine citizenship, a visa-free entry under a balikbayan stamp being insufficient.
Since petitioner was still an American (without any resident visa) until her reacquisition of citizenship
under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very different from her situation.
In Coquilla v. COMELEC,159 the only evidence presented was a community tax certificate secured
by the candidate and his declaration that he would be running in the elections. Japzon v.
COMELEC160 did not involve a candidate who wanted to count residence prior to his reacquisition of
Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue
there was whether the candidate's acts after reacquisition sufficed to establish residence.
In Caballero v. COMELEC, 161 the candidate admitted that his place of work was abroad and that he
only visited during his frequent vacations. In Reyes v. COMELEC,162 the candidate was found to be
an American citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the
only proof she offered was a seven-month stint as provincial officer. The COMELEC, quoted with
approval by this Court, said that "such fact alone is not sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In contrast,
the evidence of petitioner is overwhelming and taken together leads to no other conclusion that she
decided to permanently abandon her U.S. residence (selling the house, taking the children from
U.S. schools, getting quotes from the freight company, notifying the U.S. Post Office of the
abandonment of their address in the U.S., donating excess items to the Salvation Army, her
husband resigning from U.S. employment right after selling the U.S. house) and permanently
relocate to the Philippines and actually re-established her residence here on 24 May 2005 (securing
T.I.N, enrolling her children in Philippine schools, buying property here, constructing a residence
here, returning to the Philippines after all trips abroad, her husband getting employed here). Indeed,
coupled with her eventual application to reacquire Philippine citizenship and her family's actual
continuous stay in the Philippines over the years, it is clear that when petitioner returned on 24 May
2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had entered the Philippines
visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An
Act Instituting a Balikbayan Program," shows that there is no overriding intent to
treat balikbayans as temporary visitors who must leave after one year. Included in the law is a
former Filipino who has been naturalized abroad and "comes or returns to the Philippines." 163 The
law institutes a balikbayan program "providing the opportunity to avail of the necessary training to
enable the balikbayan to become economically self-reliant members of society upon their return to
the country"164in line with the government's "reintegration program." 165 Obviously, balikbayans are
not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into
society, it would be an unduly harsh conclusion to say in absolute terms that the balikbayan must
leave after one year. That visa-free period is obviously granted him to allow him to re-establish his
life and reintegrate himself into the community before he attends to the necessary formal and legal
requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by
enrolling her children and buying property while awaiting the return of her husband and then
applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in domicile is
extensive and overwhelming, has as yet been decided by the Court. Petitioner's evidence of
residence is unprecedented. There is no judicial precedent that comes close to the facts of
residence of petitioner. There is no indication in Coquilla v. COMELEC,166 and the other cases cited
by the respondents that the Court intended to have its rulings there apply to a situation where the
facts are different. Surely, the issue of residence has been decided particularly on the facts-of-the
case basis.
To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the
COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by 9
May 2016 in her 2015 COC was false because she put six ( 6) years and six ( 6) months as "period
of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC,
she started being a Philippine resident only in November 2006. In doing so, the COMELEC
automatically assumed as true the statement in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013
COC as the period of residence as of the day she submitted that COC in 2012. She said that she
reckoned residency from April-May 2006 which was the period when the U.S. house was sold and
her husband returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that
residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13
May 2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the
change which the COMELEC itself introduced in the 2015 COC which is now "period of residence in
the Philippines up to the day before May 09, 2016." The COMELEC would not have revised the
query if it did not acknowledge that the first version was vague.
That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house
and the return of her husband is plausible given the evidence that she had returned a year before.
Such evidence, to repeat, would include her passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and
conclusive admission against petitioner. It could be given in evidence against her, yes, but it was by
no means conclusive. There is precedent after all where a candidate's mistake as to period of
residence made in a COC was overcome by evidence. In Romualdez-Marcos v. COMELEC,167 the
candidate mistakenly put seven (7) months as her period of residence where the required period
was a minimum of one year. We said that "[i]t is the fact of residence, not a statement in a certificate
of candidacy which ought to be decisive in determining whether or not an individual has satisfied the
constitutions residency qualification requirement." The COMELEC ought to have looked at the
evidence presented and see if petitioner was telling the truth that she was in the Philippines from 24
May 2005. Had the COMELEC done its duty, it would have seen that the 2012 COC and the 2015
COC both correctly stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner actually and
physically returned here on 24 May 2005 not because it was false, but only because COMELEC
took the position that domicile could be established only from petitioner's repatriation under R.A. No.
9225 in July 2006. However, it does not take away the fact that in reality, petitioner had returned
from the U.S. and was here to stay permanently, on 24 May 2005. When she claimed to have been
a resident for ten (10) years and eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As already stated, a
petition for quo warranto had been filed against her with the SET as early as August 2015. The
event from which the COMELEC pegged the commencement of residence, petitioner's repatriation
in July 2006 under R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial
candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC,
petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias
Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the issue
immediately, also in the press. Respondents have not disputed petitioner's evidence on this point.
From that time therefore when Rep. Tiangco discussed it in the media, the stated period of
residence in the 2012 COC and the circumstances that surrounded the statement were already
matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo
warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she made a
mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she misunderstood
the question and could have truthfully indicated a longer period. Her answer in the SET case was a
matter of public record. Therefore, when petitioner accomplished her COC for President on 15
October 2015, she could not be said to have been attempting to hide her erroneous statement in her
2012 COC for Senator which was expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012
statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this
Court's pronouncement that:
Concededly, a candidate's disqualification to run for public office does not necessarily constitute
material misrepresentation which is the sole ground for denying due course to, and for the
cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC
must not only refer to a material fact (eligibility and qualifications for elective office), but should
evince a deliberate intent to mislead, misinform or hide a fact which would otherwise render a
candidate ineligible. It must be made with an intention to deceive the electorate as to one's
qualifications to run for public office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of
evidenced dates all of which can evince animus manendi to the Philippines and animus non
revertedi to the United States of America. The veracity of the events of coming and staying home
was as much as dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn
declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and
therefore an admission that her residence in the Philippines only commence sometime in November
2006"; such that "based on this declaration, [petitioner] fails to meet the residency requirement for
President." This conclusion, as already shown, ignores the standing jurisprudence that it is the fact
of residence, not the statement of the person that determines residence for purposes of compliance
with the constitutional requirement of residency for election as President. It ignores the easily
researched matter that cases on questions of residency have been decided favorably for the
candidate on the basis of facts of residence far less in number, weight and substance than that
presented by petitioner.169 It ignores, above all else, what we consider as a primary reason why
petitioner cannot be bound by her declaration in her COC for Senator which declaration was not
even considered by the SET as an issue against her eligibility for Senator. When petitioner made
the declaration in her COC for Senator that she has been a resident for a period of six (6) years and
six (6) months counted up to the 13 May 2013 Elections, she naturally had as reference the
residency requirements for election as Senator which was satisfied by her declared years of
residence. It was uncontested during the oral arguments before us that at the time the declaration
for Senator was made, petitioner did not have as yet any intention to vie for the Presidency in 2016
and that the general public was never made aware by petitioner, by word or action, that she would
run for President in 2016. Presidential candidacy has a length-of-residence different from that of a
senatorial candidacy. There are facts of residence other than that which was mentioned in the COC
for Senator. Such other facts of residence have never been proven to be false, and these, to repeat
include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the
USA to finish pending projects and arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled
Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in
2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old
enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their
family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who
handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a
new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are
"Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of
the family's remaining household belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11
March 2006.
In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's
abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines
on 4 May 2006 and began working for a Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they
eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under
the exclusive ground of false representation, to consider no other date than that mentioned by
petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of petitioner for her candidacy as
President of the Republic, the questioned Resolutions of the COMELEC in Division and En
Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001
(DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is
hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated
cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution
of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is
AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015
Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and
Local Elections of 9 May 2016.
SO ORDERED.
APPOINTMENT AND SUPERVISION OF JUDICIAL PERSONNEL
A.M. No. 13-09-08-SC October 1, 2013
RE: REQUEST FOR GUIDANCE/CLARIFICATION ON SECTION 7, RULE III OF REPUBLIC ACT
NO. 10154 REQUIRING RETIRING GOVERNMENT EMPLOYEES TO SECURE A CLEARANCE
OF PENDENCY/NON-PENDENCY OF CASE/S FROM THE CIVIL SERVICE COMMISSION.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court is a Memorandum dated September 18, 2013 from Atty. Eden T. Candelaria,
Deputy Clerk of Court and Chief Administrative Officer, Office of Administrative Services of the
Supreme Court, requesting guidance/clarification on the applicability to the Judiciary of Section 7,
Rule III of the Implementing Rules and Regulations of Republic Act No. (RA) 10154 1 which states:
Section 7. Notice of Pendency of Case. The retiring employee shall seek Clearance of
Pendency/Non-Pendency of Administrative Case from his/her employer agency, Civil Service
Commission (CSC), Office of the Ombudsman, or in case of presidential appointees, from the Office
of the President.
Section 6,2 Article VIII of the 1987 Philippine Constitution (Constitution) exclusively vests in the
Court administrative supervision over all courts and court personnel.3 As such, it oversees the court
personnels compliance with all laws and takes the proper administrative action against them for any
violation thereof.4 As an adjunct thereto, it keeps in its custody records pertaining to the
administrative cases of retiring court personnel.1wphi1
In view of the foregoing, the Court rules that the subject provision which requires retiring
government employees to secure a prior clearance of pendency/non-pendency of administrative
case/s from, among others, the CSC should not be made to apply to employees of the
Judiciary.1wphi1 To deem it otherwise would disregard the Courts constitutionally-enshrined
power of administrative supervision over its personnel. Besides, retiring court personnel are already
required to secure a prior clearance of the pendency/non-pendency of administrative case/s from
the Court which makes the CSC clearance a superfluous and non-expeditious requirement contrary
to the declared state policy of RA 10154.5
To further clarify the matter, the same principles dictate that a prior clearance of pendency/non-
pendency of administrative case/s from the Office of the President (albeit some court personnel are
presidential appointees, e.g., Supreme Court Justices) or the Office of the Ombudsman should not
equally apply to retiring court personnel. Verily, the administrative supervision of court personnel
and all affairs related thereto fall within the exclusive province of the Judiciary.
It must, however, be noted that since the Constitution only accords the Judiciary administrative
supervision over its personnel, a different treatment of the clearance requirement obtains with
respect to criminal cases. As such, a clearance requirement which pertains to criminal cases may
be imposed by the appropriate government agency, i.e., the Office of the Ombudsman, 6 on retiring
court personnel as it is a matter beyond the ambit of the Judiciarys power of administrative
supervision.
WHEREFORE, the requirement of seeking a Clearance of Pendency/Non-Pendency of
Administrative Case from the Civil Service Commission embodied in Section 7, Rule III of the
Implementing Rules and Regulations of Republic Act No. 10154 is declared INAPPLICABLE to
retiring employees of the Judiciary.
SO ORDERED.
FISCAL AUTONOMY